Federal Register, Volume 84 Issue 172 (Thursday, September 5, 2019)

[Federal Register Volume 84, Number 172 (Thursday, September 5, 2019)]
[Rules and Regulations]
[Pages 46788-46827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18930]

[[Page 46787]]

Vol. 84

Thursday,

No. 172

September 5, 2019

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 219

Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to Alaska Fisheries Science Center Fisheries Research; Final Rule

Federal Register / Vol. 84 , No. 172 / Thursday, September 5, 2019 /
Rules and Regulations

[[Page 46788]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 219

[Docket No. 170127128-9394-02]
RIN 0648-BG64

Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Alaska Fisheries Science Center Fisheries Research

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS's Office of Protected Resources (OPR), upon request from
NMFS's Alaska Fisheries Science Center (AFSC), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to fisheries research conducted in multiple specified
geographical regions over the course of five years. These regulations,
which allow for the issuance of Letters of Authorization (LOA) for the
incidental take of marine mammals during the described activities and
specified timeframes, prescribe the permissible methods of taking and
other means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, as well as requirements
pertaining to the monitoring and reporting of such taking.

DATES: Effective from October 7, 2019, through October 7, 2024.

ADDRESSES: A copy of AFSC's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-afsc-fisheries-and-ecosystem-research. In
case of problems accessing these documents, please call the contact
listed below.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

These regulations establish a framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of
marine mammals incidental to the AFSC's fisheries research activities
in the Gulf of Alaska, Bering Sea, and Arctic Ocean, and, by AFSC's
request, also includes fisheries research activities of the
International Pacific Halibut Commission (IPHC), which occur in the
Bering Sea, Gulf of Alaska, and off of the U.S. west coast.
We received an application from the AFSC requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B harassment incidental to the use
of active acoustic devices, as well as by visual disturbance of
pinnipeds, and by Level A harassment, serious injury, or mortality
incidental to the use of fisheries research gear. Please see
``Background'' below for definitions of harassment.

Legal Authority for the Action

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the ``Mitigation'' section),
as well as monitoring and reporting requirements. Section 101(a)(5)(A)
of the MMPA and the implementing regulations at 50 CFR part 216,
subpart I provide the legal basis for issuing this rule containing
five-year regulations, and for any subsequent LOAs. As directed by this
legal authority, the regulations contain mitigation, monitoring, and
reporting requirements.

Summary of Major Provisions Within the Regulations

Following is a summary of the major provisions of these regulations
regarding AFSC fisheries research activities. These measures include:
Required monitoring of the sampling areas to detect the
presence of marine mammals before deployment of certain research gear.
Required implementation of the mitigation strategy known
as the ``move-on rule mitigation protocol'' which incorporates best
professional judgment, when necessary during certain research fishing
operations.

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made, regulations are issued, and notice is
provided to the public.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
NMFS has defined ``unmitigable adverse impact'' in 50 CFR 216.103
as an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a
level insufficient for a harvest to meet subsistence needs by: (i)
Causing the marine mammals to abandon or avoid hunting areas; (ii)
directly displacing subsistence users; or (iii) placing physical
barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to
increase the availability of marine mammals to allow subsistence needs
to be met.
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).

Summary of Request

On June 28, 2016, we received an adequate and complete request from
AFSC for authorization to take marine

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mammals incidental to fisheries research activities. On October 18,
2016 (81 FR 71709), we published a notice of receipt of AFSC's
application in the Federal Register, requesting comments and
information related to the AFSC request for thirty days. We received
comments jointly from The Humane Society of the United States and Whale
and Dolphin Conservation (HSUS/WDC). Subsequently, AFSC presented
substantive revisions to the application, including revisions to the
take authorization request as well as incorporation of the IPHC
fisheries research activities. We received this revised application,
which was determined to be adequate and complete, on September 6, 2017.
We then published a notice of its receipt in the Federal Register,
requesting comments and information for thirty days, on September 14,
2017 (82 FR 43223). We received no comments in response to this second
review period. The original comments received from HSUS/WDC are
available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-afsc-fisheries-and-ecosystem-research and
were considered in development of the proposed rule. We published a
Notice of Proposed Rulemaking in the Federal Register on August 1, 2018
(83 FR 37638) and requested comments and information from the public.
Please see ``Comments and Responses,'' below.
AFSC conducts fisheries research using trawl gear used at various
levels in the water column, hook-and-line gear (including longlines
with multiple hooks), gillnets, and other gear. If a marine mammal
interacts with gear deployed by AFSC, the outcome could potentially be
Level A harassment, serious injury (i.e., any injury that will likely
result in mortality), or mortality. Although any given gear interaction
could result in an outcome less severe than mortality or serious
injury, we do not have sufficient information to allow parsing these
potential outcomes. Therefore, AFSC presents a pooled estimate of the
number of potential incidents of gear interaction and, for analytical
purposes we assume that gear interactions would result in serious
injury or mortality. AFSC also uses various active acoustic devices in
the conduct of fisheries research, and use of some devices has the
potential to result in Level B harassment of marine mammals. Level B
harassment of pinnipeds hauled out may also occur, as a result of
visual disturbance from vessels conducting AFSC research.
AFSC requested authorization to take individuals of 19 species by
Level A harassment, serious injury, or mortality (hereafter referred to
as M/SI) and of 25 species by Level B harassment. These regulations are
effective for five years.

Description of the Specified Activity

Overview

The AFSC collects a wide array of information necessary to evaluate
the status of exploited fishery resources and the marine environment.
AFSC scientists conduct fishery-independent research onboard NOAA-owned
and operated vessels or on chartered vessels. Such research may also be
conducted by cooperating scientists on non-NOAA vessels when the AFSC
helps fund the research. The AFSC plans to administer and conduct
approximately 58 survey programs over the five-year period, within
three separate research areas (some survey programs are conducted
across more than one research area). The gear types used fall into
several categories: towed nets fished at various levels in the water
column, longline gear, gillnets and seine nets, traps, and other gear.
Only use of trawl nets, longlines, and gillnets are likely to result in
interaction with marine mammals. Many of these surveys also use active
acoustic devices.
The Federal government has a responsibility to conserve and protect
living marine resources in U.S. waters and has also entered into a
number of international agreements and treaties related to the
management of living marine resources in international waters outside
the United States. NOAA has the primary responsibility for managing
marine finfish and shellfish species and their habitats, with that
responsibility delegated within NOAA to NMFS.
In order to direct and coordinate the collection of scientific
information needed to make informed fishery management decisions,
Congress created six regional fisheries science centers, each a
distinct organizational entity and the scientific focal point within
NMFS for region-based Federal fisheries-related research. This research
is aimed at monitoring fish stock recruitment, abundance, survival and
biological rates, geographic distribution of species and stocks,
ecosystem process changes, and marine ecological research. The AFSC is
the research arm of NMFS in the Alaska region of the United States. The
AFSC conducts research and provides scientific advice to manage
fisheries and conserve protected species in the geographic research
areas described below and provides scientific information to support
the North Pacific Fishery Management Council and other domestic and
international fisheries management organizations.
The IPHC, established by a convention between the governments of
Canada and the United States, is an international fisheries
organization mandated to conduct research on and management of the
stocks of Pacific halibut (Hippoglossus stenolepis) within the
Convention waters of both nations. The Northern Pacific Halibut Act of
1982 (16 U.S.C. 773), which amended the earlier Northern Pacific
Halibut Act of 1937, is the enabling legislation that gives effect to
the Convention in the United States. Although operating in U.S. waters
(and, therefore, subject to the MMPA prohibition on ``take'' of marine
mammals), the IPHC is not appropriately considered to be a U.S. citizen
(as defined by the MMPA) and cannot be issued an incidental take
authorization. For purposes of MMPA compliance, the AFSC sponsors the
IPHC research activities occurring in U.S. waters, with applicable
mitigation, monitoring, and reporting requirements conveyed to the IPHC
via Letters of Acknowledgement issued by the AFSC pursuant to the
Magnuson-Stevens Fishery Conservation and Management Act (MSA).
Fishery-independent data necessary to the management of halibut
stocks is collected using longline gear aboard chartered commercial
vessels within multiple IPHC regulatory areas, including within U.S.
waters of the Bering Sea, Gulf of Alaska, and off the U.S. west coast.
The IPHC plans to conduct two survey programs over the five-year
period. IPHC activity and requested take authorization is described in
Appendix C of AFSC's application.

Dates and Duration

The specified activity may occur at any time during the five-year
period of validity of the regulations. Dates and duration of individual
surveys are inherently uncertain, based on congressional funding levels
for the AFSC, weather conditions, or ship contingencies. In addition,
cooperative research is designed to provide flexibility on a yearly
basis in order to address issues as they arise. Some cooperative
research projects last multiple years or may continue with
modifications. Other projects only last one year and are not continued.
Most cooperative research projects go through an annual competitive
selection process to determine which projects should be funded based on
proposals developed by many independent researchers and fishing
industry participants.

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Specified Geographical Region

The AFSC conducts research in Alaska within three research areas
considered to be distinct specified geographical regions: The Gulf of
Alaska Research Area (GOARA), the Bering Sea/Aleutian Islands Research
Area (BSAIRA), and the Chukchi Sea and Beaufort Sea Research Area
(CSBSRA). Please see Figures 2-1 through 2-3 in the AFSC application
for maps of the three research areas. We note here that, while the
specified geographical regions within which the AFSC operates may
extend outside of the U.S. Exclusive Economic Zone (EEZ), i.e., into
the Canadian EEZ (but not including Canadian territorial waters), the
MMPA's authority does not extend into foreign territorial waters. IPHC
research activities are carried out within the BSAIRA and GOARA but
also within a fourth specified geographical region, i.e., off the U.S.
west coast (see Figure C-3 of the AFSC application). The IPHC operates
from 36[deg]40' N (approximately Monterey Bay, California) at the
southernmost extension northward to the Canadian border, including U.S.
waters within Puget Sound. These areas were described in detail in our
Notice of Proposed Rulemaking (83 FR 37638; August 1, 2018); please see
that document for further detail.

Detailed Description of Activities

A detailed description of AFSC's planned activities was provided in
our Notice of Proposed Rulemaking (83 FR 37638; August 1, 2018) and is
not repeated here. No changes have been made to the specified
activities described therein.

Comments and Responses

We published a Notice of Proposed Rulemaking in the Federal
Register on August 1, 2018 (83 FR 37638), and requested comments and
information from the public. During the thirty-day comment period, we
received letters from the Marine Mammal Commission (Commission), the
Ecological Sciences Communication Initiative (ECO-SCI), and from three
private citizens. Of the latter, one comment expressed general
opposition, one expressed general support, and one was not relevant to
the proposed rulemaking. The remaining comments and our responses are
provided here, and the comments have been posted online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-afsc-fisheries-and-ecosystem-research. Please see the
Commission's comment letter for full rationale behind the
recommendations we respond to below. No changes were made to the
proposed rule as a result of these comments.
Comment 1: The Commission provides general recommendations--not
specific to the proposed AFSC rulemaking--that NMFS develop criteria
and guidance for determining when prospective applicants should request
taking by Level B harassment from the use of echosounders, other
sonars, and sub-bottom profilers and that NMFS formulate a strategy for
updating its generic behavioral harassment thresholds for all types of
sound sources as soon as possible.
Response: We thank the Commission for its continued interest in
these issues. Generally speaking, there has been a lack of information
and scientific consensus regarding the potential effects of scientific
sonars on marine mammals, which may differ depending on the system and
species in question as well as the environment in which the system is
operated. We will continue to evaluate the need for applicant guidance
specific to the types of acoustic sources mentioned by the Commission.
With regard to revision of existing behavioral harassment criteria,
NMFS agrees that this is necessary. NMFS is continuing our examination
of the effects of noise on marine mammal behavior and is focused on
developing guidance regarding the effects of anthropogenic sound on
marine mammal behavior. Behavioral response is a complex question, and
NMFS will take the time that is necessary to research and address it
appropriately.
Comment 2: The Commission recommends that OPR require AFSC to
estimate the numbers of marine mammals taken by Level B harassment
incidental to use of active acoustic sources (e.g., echosounders) based
on the 120-decibel (dB) rather than the 160-dB root mean square (rms)
sound pressure level (SPL) threshold.
Response: Please see our Notice of Proposed Rulemaking (83 FR
37638; August 1, 2018) for discussion related to acoustic terminology
and thresholds. The Commission repeats a recommendation made in prior
letters concerning proposed authorization of take incidental to use of
scientific sonars (such as echosounders). As we have described in
responding to those prior comments (e.g., 83 FR 36370), our evaluation
of the available information leads us to disagree with this
recommendation. After review of the Commission's recommendation in this
case, our assessment is unchanged. While the Commission presents
certain valid points in attempting to justify their recommendation
(e.g., certain sensitive species are known to respond to sound
exposures at lower levels), these points do not ultimately support the
recommendation.
First, we provide some necessary background on implementation of
acoustic thresholds. NMFS has historically used generalized acoustic
thresholds based on received levels to predict the occurrence of
behavioral harassment, given the practical need to use a relatively
simple threshold based on information that is available for most
activities. Thresholds were selected in consideration largely of
measured avoidance responses of mysticete whales to airgun signals and
to industrial noise sources, such as drilling. The selected thresholds
of 160 dB rms SPL and 120 dB rms SPL, respectively, have been extended
for use since then for estimation of behavioral harassment associated
with noise exposure from sources associated with other common
activities as well.
Separately, NMFS and the U.S. Navy have historically worked closely
together to develop appropriate criteria specific to use of low- and
mid-frequency active sonar and underwater explosives. The Commission's
reference to the Navy's use of different acoustic harassment criteria
is not relevant, as those criteria were developed, and have evolved
over time in reflection of available science, with specific reference
to military sonar or underwater detonations.
The Commission misinterprets how NMFS characterizes scientific
sonars, so we provide clarification here. Sound sources can be divided
into broad categories based on various criteria or for various
purposes. As discussed by Richardson et al. (1995), source
characteristics include strength of signal amplitude, distribution of
sound frequency and, importantly in context of these thresholds,
variability over time. With regard to temporal properties, sounds are
generally considered to be either continuous or transient (i.e.,
intermittent). Continuous sounds, which are produced by the industrial
noise sources for which the 120-dB behavioral harassment threshold was
selected, are simply those whose sound pressure level remains above
ambient sound during the observation period (ANSI, 2005). Intermittent
sounds are defined as sounds with interrupted levels of low or no sound
(NIOSH, 1998). Simply put, a continuous noise source produces a signal
that continues over time, while an intermittent source produces signals
of relatively short duration having an obvious start and end with
predictable patterns of bursts of sound and silent periods (i.e., duty

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cycle) (Richardson and Malme, 1993). It is this fundamental temporal
distinction that is most important for categorizing sound types in
terms of their potential to cause a behavioral response. For example,
Gomez et al. (2016) found a significant relationship between source
type and marine mammal behavioral response when sources were split into
continuous (e.g., shipping, icebreaking, drilling) versus intermittent
(e.g., sonar, seismic, explosives) types. In addition, there have been
various studies noting differences in responses to intermittent and
continuous sound sources for other species (e.g., Neo et al., 2014;
Radford et al., 2016; Nichols et al., 2015).
Sound sources may also be categorized based on their potential to
cause physical damage to auditory structures and/or result in threshold
shifts. In contrast to the temporal distinction discussed above, the
most important factor for understanding the differing potential for
these outcomes across source types is simply whether the sound is
impulsive or not. Impulsive sounds, such as those produced by airguns,
are defined as sounds which are typically transient, brief (< 1 sec),
broadband, and consist of a high peak pressure with rapid rise time and
rapid decay (ANSI, 1986; NIOSH, 1998). These sounds are generally
considered to have greater potential to cause auditory injury and/or
result in threshold shifts. Non-impulsive sounds can be broadband,
narrowband or tonal, brief or prolonged, continuous or intermittent,
and typically do not have the high peak pressure with rapid rise/decay
time that impulsive sounds do (ANSI, 1995; NIOSH, 1998). Because the
selection of the 160-dB behavioral threshold was focused largely on
airgun signals, it has historically been commonly referred to as the
``impulse noise'' threshold (including by NMFS). However, this
longstanding confusion in terminology--i.e., the erroneous impulsive/
continuous dichotomy--presents a narrow view of the sound sources to
which the thresholds apply, and inappropriately implies a limitation in
scope of applicability for the 160-dB behavioral threshold in
particular.
An impulsive sound is by definition intermittent; however, not all
intermittent sounds are impulsive. Many sound sources for which it is
generally appropriate to consider the authorization of incidental take
are in fact either impulsive (and intermittent) (e.g., impact pile
driving) or continuous (and non-impulsive) (e.g., vibratory pile
driving). However, scientific sonars present a less common case where
the sound produced is considered intermittent but non-impulsive. Herein
lies the crux of the Commission's argument, i.e., that because
scientific sonars used by NMFS's science centers are not impulsive
sound sources, they must be assessed using the 120-dB behavioral
threshold appropriate for continuous noise sources. However, given the
existing paradigm--dichotomous thresholds appropriate for generic use
in evaluating the potential for behavioral harassment resulting from
exposure to continuous or intermittent sound sources--the Commission
does not adequately explain why potential harassment from an
intermittent sound source should be evaluated using a threshold
developed for use with continuous sound sources. As we have stated in
prior responses to this recommendation, consideration of the preceding
factors leads to a conclusion that the 160-dB threshold is more
appropriate for use than is the 120-dB threshold.
As noted above, the Commission first claims generically that we are
using an incorrect threshold, because scientific sonars do not produce
impulse noise. However, in bridging the gap from this generic assertion
to their specific recommendation that the 120-dB continuous noise
threshold should be used, the Commission makes several leaps of logic
that we address here. The Commission's justification is in large part
seemingly based on citation to examples in the literature of the most
sensitive species responding at lower received levels to sources
dissimilar to those considered here. There are three critical errors in
this approach.
First, the citation of examples of animals ``responding to sound''
does not equate to behavioral harassment, as defined by the MMPA. As
noted above under ``Background,'' the MMPA defines Level B harassment
as acts with the potential to disturb a marine mammal by causing
disruption of behavioral patterns. While it is possible that some
animals do in fact experience Level B harassment upon exposure to
intermittent sounds at received levels less than the 160-dB threshold,
this is not in and of itself adequate justification for using a lower
threshold. Implicit in the use of a step function for quantifying
behavioral harassment is the realistic assumption, due to behavioral
context and other factors, that some animals exposed to received levels
below the threshold will in fact experience harassment, while others
exposed to levels above the threshold will not. Moreover, a brief,
transient behavioral response should not necessarily be considered as
having the potential to disturb by disrupting behavioral patterns.
Many of the examples given by the Commission demonstrate mild
responses, but not behavioral changes more likely to indicate Level B
harassment. For example, the Commission discusses two studies (Quick et
al., 2017; Cholewiak et al., 2017) that describe responses to one of
the same sources considered here (the EK60 echosounder). We addressed
Quick et al. (2017) in our Notice of Proposed Rulemaking, describing
the authors' findings that, while tagged pilot whales increased heading
variance during exposure to the EK60, tag data did not show an overt
response to the echosounder or a change to foraging behavior. (Digital
acoustic recording tags were attached to study animals; EK60 signals
were within audible range for the animals with received levels ranging
from 117-125 dB). Similarly, the authors report that visual
observations of behavior did not indicate any dramatic response,
unusual behaviors, changes in heading, or cessation of biologically
important behavior such as feeding. No evidence is presented that could
be reasonably construed as Level B harassment. Cholewiak et al. (2017)
describe responses of beaked whales to the EK60 echosounder, finding
that they were significantly less likely to be detected acoustically
while echosounders were active. However, it is not clear that this
response should be considered as Level B harassment when considered in
context of what is likely a brief, transient effect given the mobile
nature of the surveys and the fact that some beaked whale populations
are known to have high site fidelity. (We note that the Commission
cites these studies as support for Lurton and DeRuiter (2011)'s
suggestion of 130 dB as a reasonable behavioral response threshold.
Given that a ``behavioral response threshold'' does not equate to a
behavioral harassment threshold, we are unsure about the intended
implication. In addition, Lurton and DeRuiter casually offer this
threshold as a result of a ``conservative approach'' using ``response
thresholds of the most sensitive species studied to date.'' NMFS does
not agree with any suggestion that this equates to an appropriate
behavioral harassment threshold). Watkins and Schevill (1975) note that
sperm whales ``temporarily interrupted'' sound production in response
to sound from pingers. No avoidance behavior was observed, and the
authors note that ``there appeared to be no startle reactions, no
sudden movements, or changes in the activity of the whales.'' Kastelein
et al. (2006a)

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describe the response of harbor porpoise to an experimental acoustic
alarm (discussed below; power averaged source level of 145 dB), while
also noting that a striped dolphin showed no reaction to the alarm,
despite both species being able to clearly detect the signal.
Second, unlike the studies discussed above which relate to
echosounders, many of the cited studies do not present a relevant
comparison. These studies discuss sources that are not appropriately or
easily compared to the sources considered here and/or address responses
of animals in experimental environments that are not appropriately
compared to the likely exposure context here. For example, aside from
the well-developed literature concerning ``acoustic harassment'' or
``acoustic deterrent'' devices--which are obviously designed for the
express purpose of harassing marine mammals (usually specific species
or groups)--Kastelein et al. (2006b) describe harbor seal responses to
signals used as part of an underwater data communication network. In
this case, seals in a pool were exposed to signals of relatively long
duration (1-2 seconds) and high duty cycle for 15 minutes, with
experimental signals of continuously varying frequency, three different
sound blocks, or frequency sweeps. These seals swam away from the sound
(though they did not attempt to reduce exposure by putting their heads
out of the water), but this result is of questionable relevance to
understanding the likely response of seals in the wild that may be
exposed to a 1-ms single-frequency signal from an echosounder moving
past the seal as a transient stimulus.
Some studies do not provide a relevant comparison not only because
of differences in the source, but because they address sources (in some
cases multiple sources) that are stationary (for extended periods of
time in some cases), whereas AFSC surveys are infrequent and transient
in any given location. Morton (2000) presents only brief speculation
that an observed decline in abundance of Pacific white-sided dolphin
coincided with introduction of 194-dB (source level) acoustic deterrent
devices--an observation that is not relevant to consideration of a
single mobile source that would be transient in space and time relevant
to a receiver. Morton and Symonds (2002) similarly address displacement
from a specific area due to a profusion of ``high-powered'' deterrent
devices (the same 194-dB system discussed briefly in Morton (2000))
placed in restricted passages for extended time periods (6 years).
Third, the Commission relies heavily on the use of examples
pertaining to the most sensitive species, which does not support an
argument that the 120-dB threshold should be applied to all species.
NMFS has acknowledged that the scientific evidence indicates that
certain species are, in general, more acoustically sensitive than
others. In particular, harbor porpoise and beaked whales are considered
to be behaviorally sensitive, and it may be appropriate to consider use
of lower behavioral harassment thresholds for these species. NMFS is
considering this issue in its current work of developing new guidelines
for assessing behavioral harassment; however, until this work is
completed and new guidelines are identified (if appropriate), the
existing generic thresholds are retained. Moreover, as is discussed
above for other reasons, the majority of examples cited by the
Commission are of limited relevance in terms of comparison of sound
sources. In support of their statement that numerous researchers have
observed marine mammals responding to sound from sources claimed to be
similar to those considered herein, the Commission indeed cites
numerous studies; however, the vast majority of these address responses
of harbor porpoise or beaked whales to various types of acoustic alarms
or deterrent devices.
We acknowledge that the Commission presents legitimate points in
support of defining a threshold specific to non-impulsive, intermittent
sources and that, among the large number of cited studies, there are a
few that show relevant results of individual animals responding to
exposure at lower received levels in ways that could be considered
harassment. As noted in a previous comment response, NMFS is currently
engaged in an ongoing effort towards developing updated guidance
regarding the effects of anthropogenic sound on marine mammal behavior.
However, prior to conclusion of this effort, NMFS will continue using
the historical Level B harassment thresholds (or derivations thereof)
and will appropriately evaluate behavioral harassment due to
intermittent sound sources relative to the 160-dB threshold.
Comment 3: The Commission notes that NMFS has delineated two
categories of acoustic sources, largely based on frequency, with those
sources operating at frequencies greater than the known hearing ranges
of any marine mammal (i.e., >180 kilohertz (kHz)) lacking the potential
to disturb marine mammals by causing disruption of behavioral patterns.
The Commission describes the recent scientific literature on acoustic
sources with frequencies above 180 kHz (i.e., Deng et al., 2014; Hastie
et al., 2014) and recommends that we estimate numbers of takes
associated with those acoustic sources (or similar acoustic sources)
with frequencies above 180 kHz that have been shown to elicit
behavioral responses above the 120-dB threshold.
Response: As the Commission acknowledges, we considered the cited
information in our Notice of Proposed Rulemaking. NMFS's response
regarding the appropriateness of the 120-dB versus 160-dB rms
thresholds was provided above in the response to Comment #2. In
general, the referenced literature indicates only that sub-harmonics
could be detectable by certain species at distances up to several
hundred meters. As we have noted in previous responses, behavioral
response to a stimulus does not necessarily indicate that Level B
harassment, as defined by the MMPA, has occurred. Source levels of the
secondary peaks considered in these studies--those within the hearing
range of some marine mammals--mean that these sub-harmonics would
either be below the threshold for behavioral harassment or would
attenuate to such a level within a few meters. Beyond these important
study details, these high-frequency (i.e., Category 1) sources and any
energy they may produce below the primary frequency that could be
audible to marine mammals would be dominated by a few primary sources
(e.g., EK60) that are operated near-continuously--much like other
Category 2 sources considered in our assessment of potential incidental
take from AFSC's use of active acoustic sources--and the potential
range above threshold would be so small as to essentially discount
them. Further, recent sound source verification testing of these and
other similar systems did not observe any sub-harmonics in any of the
systems tested under controlled conditions (Crocker and Fratantonio,
2016). While this can occur during actual operations, the phenomenon
may be the result of issues with the system or its installation on a
vessel rather than an issue that is inherent to the output of the
system. There is no evidence to suggest that Level B harassment of
marine mammals should be expected in relation to use of active acoustic
sources at frequencies exceeding 180 kHz.
Comment 4: ECO-SCI appears to suggest that we failed to use the
best scientific evidence available in developing our proposed
rulemaking and in making our preliminary determinations under the MMPA.

[[Page 46793]]

Response: As explained in detail in our Notice of Proposed
Rulemaking (August 1, 2018; 83 FR 37638), NMFS did use the best
scientific evidence available. In cases where population abundance
estimates are not presented in NMFS' Stock Assessment Reports, either
due to lack of available data or because the available data are
considered outdated, we carefully described the data that are
available, how those data support our assessment of the size and health
of affected populations, and the process by which we evaluated the
effects of the specified activity on the affected marine mammal species
and stocks. The ECO-SCI comment letter evidences a limited
understanding of the available data and confusion regarding relevant
statutory and regulatory processes; and, ultimately, the commenter's
apparent claims are not supported.

Description of Marine Mammals in the Area of the Specified Activity

We have reviewed AFSC's species descriptions--which summarize
available information regarding status and trends, distribution and
habitat preferences, behavior and life history, and auditory
capabilities of the potentially affected species--for accuracy and
completeness and refer the reader to Sections 3 and 4 of AFSC's
application (and Sections 3 and 4 of Appendix C, which specifically
addresses the IPHC activities), instead of reprinting the information
here. Additional information regarding population trends and threats
may be found in NMFS's Stock Assessment Reports (SAR;
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (www.fisheries.noaa.gov/find-species).
Table 1 lists all species with expected potential for occurrence in
the specified geographical regions where AFSC and IPHC plan to conduct
the specified activities and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2018). PBR, defined by the MMPA as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population, is discussed in
greater detail later in this document (see ``Negligible Impact
Analysis'').
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in the specified geographical
regions are assessed in either NMFS's U.S. Alaska SARs or U.S. Pacific
SARs. All values presented in Table 1 are the most recent available at
the time of writing and are available in the 2017 SARs (Carretta et
al., 2018; Muto et al., 2018) or draft 2018 SARs (available online at:
www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
Forty species (with 88 managed stocks) are considered to have the
potential to co-occur with AFSC and IPHC activities. Species that could
potentially occur in the research areas but are not expected to have
the potential for interaction with AFSC research gear or that are not
likely to be harassed by AFSC's use of active acoustic devices are
described briefly but omitted from further analysis. These include
extralimital species, which are species that do not normally occur in a
given area but for which there are one or more occurrence records that
are considered beyond the normal range of the species. Species
considered to be extralimital here are the narwhal (Monodon monoceros;
CSBSRA only), Bryde's whale (Balaenoptera edeni brydei; IPHC U.S. west
coast research area only), and the Western North Pacific stock of the
gray whale (see our Notice of Proposed Rulemaking (August 1, 2018; 83
FR 37638) for additional discussion of the gray whale). In addition,
the sea otter is found in coastal waters--with the northern (or
eastern) sea otter (Enhydra lutris kenyoni) found in Alaska--and the
Pacific walrus (Odobenus rosmarus divergens) and polar bear (Ursus
maritimus) may also occur in AFSC research areas. However, these
species are managed by the U.S. Fish and Wildlife Service and are not
considered further in this document.
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BILLING CODE 3510-22-C
Additional detail regarding the affected species and stocks was
provided in our Notice of Proposed Rulemaking (August 1, 2018; 83 FR
37638) and is not repeated here.
Take Reduction Planning--Take reduction plans are designed to help
recover and prevent the depletion of strategic marine mammal stocks
that interact with certain U.S. commercial fisheries, as required by
Section 118 of the MMPA. The immediate goal of a take reduction plan is
to reduce, within

[[Page 46800]]

six months of its implementation, the M/SI of marine mammals incidental
to commercial fishing to less than the PBR level. The long-term goal is
to reduce, within five years of its implementation, the M/SI of marine
mammals incidental to commercial fishing to insignificant levels,
approaching a zero serious injury and mortality rate, taking into
account the economics of the fishery, the availability of existing
technology, and existing state or regional fishery management plans.
Take reduction teams are convened to develop these plans.
There are no take reduction plans currently in effect for Alaskan
fisheries. For marine mammals off the U.S. west coast, there is
currently one take reduction plan in effect (Pacific Offshore Cetacean
Take Reduction Plan). The goal of this plan is to reduce M/SI of
several marine mammal stocks incidental to the California thresher
shark/swordfish drift gillnet fishery (CA DGN). A team was convened in
1996 and a final plan produced in 1997 (62 FR 51805; October 3, 1997).
Marine mammal stocks of concern initially included the California,
Oregon, and Washington stocks for beaked whales, short-finned pilot
whales, pygmy sperm whales, sperm whales, and humpback whales. The most
recent five-year averages of M/SI for these stocks are below PBR. More
information is available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/pacific-offshore-cetacean-take-reduction-plan.
Of the stocks of concern, the AFSC requested the authorization of
incidental M/SI for the short-finned pilot whale only (on behalf of
IPHC; see ``Estimated Take'' later in this document). The most recent
reported average annual human-caused mortality for short-finned pilot
whales (2010-14) is 1.2 animals. The IPHC does not use drift gillnets
in its fisheries research program; therefore, take reduction measures
applicable to the CA DGN fisheries are not relevant.
Unusual Mortality Events (UME)--A UME is defined under the MMPA as
a stranding that is unexpected; involves a significant die-off of any
marine mammal population; and demands immediate response. From 1991 to
the present, there have been 19 formally recognized UMEs on the U.S.
west coast or in Alaska involving species under NMFS' jurisdiction. The
only currently ongoing investigations involve Guadalupe fur seals and
California sea lions along the west coast. Increased strandings of
Guadalupe fur seals (up to eight times the historical average) have
occurred along the entire coast of California. These increased
strandings were reported beginning in January 2015 and peaked from
April through June 2015, but have remained well above average through
2018. Findings from the majority of stranded animals include
malnutrition with secondary bacterial and parasitic infections.
Beginning in January 2013, elevated strandings of California sea lion
pups were observed in southern California, with live sea lion
strandings nearly three times higher than the historical average.
Findings to date indicate that a likely contributor to the large number
of stranded, malnourished pups was a change in the availability of sea
lion prey for nursing mothers, especially sardines. These UMEs are
occurring in the same areas and the causes and mechanisms of this
remain under investigation (www.fisheries.noaa.gov/national/marine-life-distress/2015-2019-guadalupe-fur-seal-unusual-mortality-event-california; www.fisheries.noaa.gov/national/marine-life-distress/2013-2017-california-sea-lion-unusual-mortality-event-california; accessed
March 18, 2019).
Another recent, notable UME involved large whales and occurred in
the western Gulf of Alaska and off of British Columbia, Canada.
Beginning in May 2015, elevated large whale mortalities (primarily fin
and humpback whales) occurred in the areas around Kodiak Island,
Afognak Island, Chirikof Island, the Semidi Islands, and the southern
shoreline of the Alaska Peninsula. Although most carcasses have been
non-retrievable as they were discovered floating and in a state of
moderate to severe decomposition, the UME is likely attributable to
ecological factors, i.e., the 2015 El Ni[ntilde]o, ``warm water blob,''
and the Pacific Coast domoic acid bloom. The dates of the UME are
considered to be from May 22 through December 31, 2015 (western Gulf of
Alaska) and from April 23, 2015, through April 16, 2016 (British
Columbia). More information is available online at
www.fisheries.noaa.gov/national/marine-life-distress/2015-2016-large-whale-unusual-mortality-event-western-gulf-alaska.
Additional UMEs in the past ten years include those involving
ringed, ribbon, spotted, and bearded seals (collectively ``ice seals'')
(2011; disease); harbor porpoises in California (2008; cause determined
to be ecological factors); Guadalupe fur seals in the Northwest (2007;
undetermined); large whales in California (2007; human interaction);
cetaceans in California (2007; undetermined); and harbor porpoises in
the Pacific Northwest (2006; undetermined). For more information on
UMEs, please visit: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with an exception
for lower limits for low-frequency cetaceans where the result was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. The functional groups and the associated
frequencies are indicated below (note that these frequency ranges
correspond to the range for the composite group, with the entire range
not necessarily reflecting the capabilities of every species within
that group):
Low-frequency cetaceans (mysticetes): Generalized hearing
is estimated to occur between approximately 7 Hz and 35 kHz, with best
hearing estimated to be from 100 Hz to 8 kHz;
Mid-frequency cetaceans (larger toothed whales, beaked
whales, and most delphinids): Generalized hearing is estimated to occur
between approximately 150 Hz and 160 kHz, with best hearing from 10 to
less than 100 kHz;
High-frequency cetaceans (porpoises, river dolphins, and
members of the genera Kogia and Cephalorhynchus; including two members
of the genus Lagenorhynchus,

[[Page 46801]]

on the basis of recent echolocation data and genetic data): Generalized
hearing is estimated to occur between approximately 275 Hz and 160 kHz;
Pinnipeds in water; Phocidae (true seals): Functional
hearing is estimated to occur between approximately 50 Hz to 86 kHz,
with best hearing between 1-50 kHz;
Pinnipeds in water; Otariidae (eared seals): Functional
hearing is estimated to occur between 60 Hz and 39 kHz for Otariidae,
with best hearing between 2-48 kHz.
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Forty marine mammal species (30 cetacean and ten pinniped (four otariid
and six phocid) species) have the potential to co-occur with AFSC and
IPHC research activities. Please refer to Table 1. Of the 30 cetacean
species that may be present, eight are classified as low-frequency
cetaceans (i.e., all mysticete species), eighteen are classified as
mid-frequency cetaceans (i.e., all delphinid and ziphiid species and
the sperm whale), and four are classified as high-frequency cetaceans
(i.e., porpoises and Kogia spp.).

Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat

We provided discussion of the potential effects of the specified
activity on marine mammals and their habitat in our Federal Register
Notice of Proposed Rulemaking (August 1, 2018; 83 FR 37638). Therefore,
we do not reprint the information here but refer the reader to that
document. That document included a summary and discussion of the ways
that components of the specified activity may impact marine mammals and
their habitat. The ``Estimated Take'' section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The ``Negligible Impact Analysis
and Determination'' section considers the content of this section and
the material it references, the ``Estimated Take'' section, and the
``Mitigation'' section, to draw conclusions regarding the likely
impacts of these activities on the reproductive success or survivorship
of individuals and how those impacts on individuals are likely to
impact marine mammal species or stocks.

Estimated Take

This section provides an estimate of the number of incidental takes
proposed for authorization, which will inform both NMFS's consideration
of whether the number of takes is ``small'' and the negligible impact
determination.
Except with respect to certain activities not pertinent here,
section 3(18) of the MMPA defines ``harassment'' as any act of pursuit,
torment, or annoyance which (i) has the potential to injure a marine
mammal or marine mammal stock in the wild (Level A harassment); or (ii)
has the potential to disturb a marine mammal or marine mammal stock in
the wild by causing disruption of behavioral patterns, including, but
not limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Take of marine mammals incidental to AFSC research activities could
occur as a result of (1) injury or mortality due to gear interaction
(Level A harassment, serious injury, or mortality); (2) behavioral
disturbance resulting from the use of active acoustic sources (Level B
harassment only); or (3) behavioral disturbance of pinnipeds resulting
from incidental approach of researchers (Level B harassment only).
Below we describe how the potential take is estimated.

Estimated Take Due to Gear Interaction

In order to estimate the number of potential incidents of take that
could occur through gear interaction, we first consider AFSC's and
IPHC's record of past such incidents, and then consider in addition
other species that may have similar vulnerabilities to AFSC trawl and
IPHC longline gear as those species for which we have historical
interaction records. Historical interactions with research gear are
described in Table 2, and we anticipate that all species that
interacted with AFSC or IPHC fisheries research gear historically could
potentially be taken in the future. Available records are for the years
2004 through present (AFSC) and 1998 through present (IPHC). All
historical AFSC interactions have taken place in the GOARA, and have
occurred during use of either the Cantrawl surface trawl net or with a
bottom trawl. Historical IPHC interactions have occurred during use of
bottom longlines and were located in the GOARA (southeast Alaska) or
west coast (offshore Oregon). AFSC has no historical interactions for
any longline or gillnet gear, and there are no historical interactions
in the BSAIRA or CSBSRA. Please see Figures 6-1 and C-6 in the AFSC
request for authorization for specific locations of these incidents.

Table 2--Historical Interactions With Research Gear
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number
Gear Survey Date Location \1\ Species Number released Total
killed alive
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottom longline................... IPHC setline........ 7/17/1999 West coast.......... Harbor seal......... 1 ........... 1
Bottom longline................... IPHC setline........ 7/23/2003 SE Alaska........... Steller sea lion.... 1 ........... 1
Bottom longline................... IPHC setline........ 7/16/2007 SE Alaska........... Steller sea lion.... 1 ........... 1
Bottom trawl...................... Gulf of Alaska 6/13/2009 GOARA............... Northern fur seal 1 ........... 1
Biennial Shelf and \2\.
Slope Bottom Trawl
Groundfish Survey.
Bottom longline................... IPHC setline........ 7/31/2011 West coast.......... Harbor seal......... 1 ........... 1
Surface trawl (Cantrawl).......... Gulf of Alaska 9/10/2011 GOARA............... Dall's porpoise..... 1 ........... 1
Assessment.
Surface trawl (Cantrawl).......... Gulf of Alaska 9/21/2011 GOARA............... Dall's porpoise..... 1 ........... 1
Assessment.
Bottom trawl...................... ADFG Large Mesh 9/5/2014 GOARA............... Harbor seal......... 1 ........... 1
Trawl Survey.
Bottom longline................... IPHC setline........ 7/22/2016 SE Alaska........... Steller sea lion.... 1 ........... 1
Bottom longline................... Longline Stock 8/18/2019 GOARA............... Steller sea lion.... 1 ........... 1
Assessment Survey.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Total individuals captured.... .................... ........... .................... Northern fur seal... 1 ........... 1
Dall's porpoise..... 2 ........... 2
Harbor seal......... 3 ........... 3
Steller sea lion.... 4 ........... 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ AFSC interactions are described by research area. IPHC research programs are not distributed according to AFSC research areas and so are described
by geographic location. Specific locations of all interactions are shown in Figures 6-1 and C-6 of the application.
\2\ Based on the location of this incident, the captured animal was believed to be from the eastern Pacific stock of northern fur seal.

[[Page 46802]]

In order to use these historical interaction records as the basis
for the take estimation process, and because we have no specific
information to indicate whether any given future interaction might
result in M/SI versus Level A harassment, we conservatively assume that
all interactions equate to mortality for these fishing gear
interactions. AFSC and IPHC have historically had only infrequent
interactions with marine mammals, e.g., from 2004-2015 AFSC conducted
at least 1,250 trawl tows per year, with only three (a fourth occurred
during a survey conducted by the Alaska Department of Fish and Game)
marine mammal interactions (Table 2). However, we assume that any of
the historically-captured species (northern fur seal, Dall's porpoise,
harbor seal, Steller sea lion) could be captured in any year.
We consider all of the interaction records available to us. In
consideration of these data, we assume that one individual of each of
the historically-captured species (Table 2) could be captured per year
over the course of the five-year period of validity for these
regulations, specific to relevant survey operations where the species
occur (e.g., one harbor seal taken per year specific to IPHC longline
survey operations, one Dall's porpoise taken per year specific to AFSC
trawl survey operations in GOARA, one Dall's porpoise taken per year
specific to AFSC trawl survey operations in BSAIRA). Table 3 shows the
projected five-year total captures of the historically-captured species
for this rule, as described above, for AFSC trawl gear and IPHC
longline gear only. Although more than one individual Dall's porpoise
has been captured in a single year, interactions have historically
occurred only infrequently. Therefore, we believe that the above
assumption appropriately reflects the likely total number of
individuals involved in research gear interactions over a five-year
period and that the assumption is precautionary in that it separately
accounts for potential vulnerability of species to gear interaction in
the different research areas. Harbor seals are expected to have less
frequency of interaction than the fur seal or Steller sea lion due to
their more inshore and coastal distribution. AFSC requested
authorization of one take per harbor seal stock in each relevant
research area over the 5-year period (note that these takes are not
included in Table 3 but are incorporated in Table 5). These estimates
are based on the assumption that annual effort (e.g., total annual
trawl tow time) over the five-year authorization period will be
approximately equivalent to the annual effort during prior years for
which we have interaction records.

Table 3--Projected Five-Year Total Take for Historically Captured Species 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
AFSC GOARA AFSC BSAIRA IPHC average
Gear Species average annual average annual annual take Projected 5-year
take (total) take (total) (total) \2\ total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Trawl....................................... Northern fur seal \3\......... 1 (5) 1 (5) ................. 10
Dall's porpoise............... 1 (5) 1 (5) ................. 10
Longline.................................... Harbor seal................... ................. ................. 1 (5) 5
Steller sea lion \4\.......... ................. ................. 1 (5) 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Projected takes based on species interaction records in analogous commercial fisheries (versus historical records) are incorporated in Table 5
below, as are all projected takes within the CSBSRA.
\2\ IPHC activities are not defined by the three AFSC research areas and may occur anywhere within the IPHC research areas off the U.S. west coast or in
the Gulf of Alaska and Bering Sea. Projected IPHC harbor seal takes could occur to any stock of harbor seal. Historical IPHC takes of Steller sea lion
have been of the eastern DPS (based on geographic location), but potential future takes could occur to either eastern or western DPS.
\3\ Referring to expected potential future takes of eastern Pacific stock northern fur seals in AFSC trawl gear on basis of historical record.
Additional take of California stock northern fur seals, inferred based on vulnerability and geographic overlap, are incorporated in Table 5 below.
\4\ Immediately prior to publication of this final rule, a Steller sea lion take occurred in AFSC longline operations in the GOARA (Table 2). However,
this incident does not affect our overall evaluation of the likelihood for Steller sea lion take due to AFSC longline operations, and we retain the
analytical structure discussed herein.

As background to the process of determining which species not
historically taken may have sufficient vulnerability to capture in AFSC
gear to justify inclusion in the take authorization request (or whether
species historically taken may have vulnerability to gears in which
they have not historically been taken or additional vulnerability not
reflected above due to activity in other areas such as the CSBSRA), we
note that the AFSC is NMFS' research arm in Alaska and may be
considered as a leading source of expert knowledge regarding marine
mammals (e.g., behavior, abundance, density) in the areas where they
operate. The species for which the take request was formulated were
selected by the AFSC, and we have concurred with these decisions. We
also note that, in addition to consulting NMFS's List of Fisheries
(LOF; described below), the historical interaction records described
above for the IPHC informed our consideration of risk of interaction
due to AFSC's use of longline gear (for which there are no historical
interaction records).
In order to estimate the total potential number of incidents of
takes that could occur incidental to the AFSC's use of trawl, longline,
and gillnet gear, and IPHC's use of longline gear, over the five-year
period of validity for these regulations (i.e., takes additional to
those described in Table 3), we first consider whether there are
additional species that may have similar vulnerability to capture in
trawl or longline gear as the five species described above that have
been taken historically and then evaluate the potential vulnerability
of these and other species to additional gears.
We believe that the Pacific white-sided dolphin likely has similar
vulnerability to capture in trawl gear as the Dall's porpoise, given
similar habitat preferences and with documented vulnerability to
capture in both commercial and research trawls. The harbor porpoise is
also considered vulnerable to capture in trawl gear, but likely with
less frequency of interaction given its inshore and coastal
distribution. The Steller sea lion is considered to have similar
vulnerability to capture in trawl gear as the northern fur seal, given
similar habitat preferences and with documented vulnerability to
capture in commercial trawls. In addition to the one northern fur seal
per year from the eastern Pacific stock that could be captured in each

[[Page 46803]]

relevant research area (Table 3), we assume that one additional
northern fur seal from the California stock could be taken in trawl
gear over the 5-year period. The assumed lesser frequency of
interaction is due to presumed lower occurrence of California stock fur
seals in AFSC research areas. Only approximately half of this
relatively small stock of fur seals ranges to the eastern GOARA.
Similar to the harbor porpoise, spotted seals are expected to have
similar vulnerability to capture in trawl gear as historically captured
pinnipeds, but with less frequency of interaction due to its more
inshore and coastal distribution. AFSC requested authorization of one
take of spotted seal in each relevant research area over the 5-year
period. This assumption is supported by LOF records (Table 5).
Historical IPHC take records also illustrate likely similar
vulnerabilities to capture by AFSC longline gear (as demonstrated by a
recent take by AFSC longline gear in the GOARA; Table 2). However, due
to reduced use of longline gear by AFSC relative to IPHC activity, we
expect that one Steller sea lion from each DPS could be taken over the
5-year period in each relevant research area. Despite IPHC records of
harbor seal capture in longline gear, we do not believe that AFSC use
of longline gear presents similar risk, in part due to the relative
infrequency of use but also because of a lack of expected geographic
overlap between AFSC longline sets and harbor seal occurrence. IPHC
conducts many more longline sets per year but also conducts survey
effort further inshore than does AFSC (water depths of 18 m). No take
of harbor seals incidental to AFSC longline survey effort is
authorized. Northern fur seals and California sea lions are considered
analogous to Steller sea lions due to similar vulnerability to capture
in longline gear. AFSC has requested authorization of one take over the
5-year period for each fur seal stock in each research area where fur
seals are found and, on behalf of IPHC, requested authorization of one
fur seal per year (which could be from either stock) and one California
sea lion over the 5-year period. Finally, the spotted seal may have
similar vulnerability to interaction with longline gear as the harbor
seal, but likely with less frequency given the limited overlap between
the species range and survey effort. We authorize one take over the 5-
year period for IPHC survey effort, but none for AFSC given very little
expected overlap. These assumptions are supported by LOF records (Table
5).
In order to evaluate the potential vulnerability of additional
species to trawl and longline and of all species to gillnet gear, we
first consulted the LOF, which classifies U.S. commercial fisheries
into one of three categories according to the level of incidental
marine mammal M/SI that is known to occur on an annual basis over the
most recent five-year period (generally) for which data has been
analyzed: Category I, frequent incidental M/SI; Category II, occasional
incidental M/SI; and Category III, remote likelihood of or no known
incidental M/SI. We provide summary information, as presented in the
2018 LOF (83 FR 5349; February 7, 2018), in Table 4. In order to
simplify information presented, and to encompass information related to
other similar species from different locations, we group marine mammals
by genus (where there is more than one member of the genus found in
U.S. waters). Where there are documented incidents of M/SI incidental
to relevant commercial fisheries, we note whether we believe those
incidents provide sufficient basis upon which to infer vulnerability to
capture in AFSC or IPHC research gear. For a listing of all Category I,
II, and II fisheries using relevant gears, associated estimates of
fishery participants, and specific locations and fisheries associated
with the historical fisheries takes indicated in Table 4 below, please
see the 2018 LOF. For specific numbers of marine mammal takes
associated with these fisheries, please see the relevant SARs. More
information is available online at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-list-fisheries
and www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

Table 4--U.S. Commercial Fisheries Interactions for Trawl, Longline, and Gillnet Gear for Relevant Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vulnerability Vulnerability Vulnerability
Species \1\ Trawl \2\ inferred? Longline \2\ inferred? Gillnet \2\ inferred?
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale......................... N N N N N N
Bowhead whale..................................... N N N N N N
Gray whale........................................ Y N N N Y N
Humpback whale.................................... Y N Y N Y N
Balaenoptera spp.................................. Y N Y N Y N
Sperm whale....................................... N N Y Y Y N
Kogia spp......................................... n/a n/a Y N n/a n/a
Cuvier's beaked whale............................. N N Y N N N
Baird's beaked whale.............................. N N N N N N
Mesoplodon spp.................................... N N Y N N N
Beluga whale...................................... N Y N N Y N
Common bottlenose dolphin......................... n/a n/a Y Y n/a n/a
Stenella spp...................................... n/a n/a Y N n/a n/a
Delphinus spp..................................... n/a n/a Y Y n/a n/a
Lagenorhynchus spp................................ Y Y N N Y Y
Northern right whale dolphin...................... n/a n/a N N n/a n/a
Risso's dolphin................................... n/a n/a Y Y n/a n/a
Killer whale...................................... Y N Y Y N N
Globicephala spp.................................. n/a n/a Y Y n/a n/a
Harbor porpoise................................... Y Y Y N Y Y
Dall's porpoise \3\............................... n/a n/a Y Y Y Y
Guadalupe fur seal \4\............................ n/a n/a N N n/a n/a
Northern fur seal \3\............................. n/a n/a Y Y Y Y
California sea lion \5\........................... n/a n/a Y Y n/a n/a
Steller sea lion \3\.............................. Y Y n/a n/a Y Y
Bearded seal...................................... Y Y N N N N
Phoca spp \3\..................................... Y Y n/a n/a Y Y

[[Page 46804]]

Ringed seal....................................... Y Y Y Y N N
Ribbon seal....................................... Y Y N N N N
Northern elephant seal............................ Y Y Y N Y N
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please refer to Table 1 for taxonomic reference.
\2\ Indicates whether any member of the genus has documented incidental M/SI in a U.S. fishery using that gear in the most recent five-year timespan for
which data is available. For those species not expected to occur in Alaskan waters, trawl and gillnet gear are not applicable (these gears would only
be used in Alaskan waters).
\3\ This exercise is considered ``not applicable'' for those species historically captured by AFSC or IPHC gear. Historical record, rather than analogy,
is considered the best information upon which to base a take estimate.
\4\ It is likely that Guadalupe fur seals are taken in Mexican fisheries, but there are no available records.
\5\ There are no records of take for California sea lions in commercial longline fisheries, but there have been multiple takes of California sea lions
in longline surveys conducted by NMFS's Southwest Fisheries Science Center. We therefore infer vulnerability for the species to research longline
gear.

Information related to incidental M/SI in relevant commercial
fisheries is not, however, the sole determinant of whether it may be
appropriate to authorize take incidental to AFSC survey operations. A
number of factors (e.g., species-specific knowledge regarding animal
behavior, overall abundance in the geographic region, density relative
to AFSC survey effort, feeding ecology, propensity to travel in groups
commonly associated with other species historically taken) were taken
into account by the AFSC to determine whether a species may have a
similar vulnerability to certain types of gear as historically taken
species. In some cases, we have determined that species without
documented M/SI may nevertheless be vulnerable to capture in AFSC
research gear. Similarly, we have determined that some species groups
with documented M/SI are not likely to be vulnerable to capture in AFSC
gear. In these instances, we provide further explanation below. Those
species with no records of historical interaction with AFSC research
gear and no documented M/SI in relevant commercial fisheries, and for
which the AFSC has not requested the authorization of incidental take,
are not considered further in this section. The AFSC believes generally
that any sex or age class of those species for which take authorization
is requested could be captured.
In order to estimate a number of individuals that could potentially
be captured in AFSC research gear for those species not historically
captured, we first determine which species may have vulnerability to
capture in a given gear. Of those species, we then determine whether
any may have similar propensity to capture in a given gear as a
historically captured species. For these species, we assume it is
possible that take could occur while at the same time contending that,
absent significant range shifts or changes in habitat usage, capture of
a species not historically captured would likely be a very rare event.
Therefore, we assume that capture would be a rare event such that
authorization of a single take over the five-year period, for each
region where the gear is used and the species is present, is likely
sufficient to capture the risk of interaction.
Trawl--From the 2018 LOF, we infer vulnerability to trawl gear for
the bearded seal, ringed seal, ribbon seal, and northern elephant seal.
This is in addition to the species for which vulnerability is indicated
by historical AFSC interactions (described above).
For the beluga whale, we believe that there is a reasonable
likelihood of incidental take in trawl gear although there are no
records of incidental M/SI in relevant commercial fisheries. Commercial
fisheries using trawl gear have largely been absent from areas where
beluga whales occur and, in particular, there are no commercial trawl
fisheries in the CSBSRA. AFSC examined the potential for incidental
take of beluga whales by evaluating the areas of overlap between their
planned fisheries research activities and beluga whale distribution,
considering the seasonality of both the research activities and the
species distributions as well as other factors that may influence the
degree of potential overlap such as sea and shorefast ice occurrence.
In considering the possible take of beluga whales, the AFSC considered
that beluga whales show behavior similar to large dolphins and
porpoises. While no belugas have been taken in AFSC research or
commercial trawl fisheries, there have been takes of large dolphins
elsewhere in trawls. Beluga whales may occur in summer periods within
the Chukchi and Beaufort Sea regions where the AFSC may be conducting
trawl surveys. Thus, AFSC requested authorization of one take each from
two stocks of beluga whale (eastern Chukchi stock and Beaufort Sea
stock) in fisheries research trawl surveys over the 5-year
authorization period. Potential spatiotemporal overlap between AFSC
trawl survey activities and other beluga whale stocks was evaluated and
determined to not support a take authorization request for other stocks
of beluga whale.
It is also possible that a captured animal may not be able to be
identified to species with certainty. Certain pinnipeds and small
cetaceans are difficult to differentiate at sea, especially in low-
light situations or when a quick release is necessary. For example, a
captured delphinid that is struggling in the net may escape or be freed
before positive identification is made. Therefore, the AFSC requested
the authorization of incidental take for one unidentified pinniped and
one unidentified small cetacean in trawl gear for each research area
over the course of the five-year period of authorization. One exception
is for small cetaceans in the CSBSRA, as no cetacean interactions with
trawl gear are expected in that region (other than the aforementioned
potential beluga whale interactions), as small cetaceans occur only
rarely in this region.
Longline--The process is the same as is described above for trawl
gear. From the 2018 LOF, we infer vulnerability to longline gear for
the Dall's porpoise, Risso's dolphin, bottlenose dolphin, common
dolphin, short-finned pilot whale, and ringed seal. This is in addition
to the species for which vulnerability is indicated by historical AFSC
interactions (described above).
Based on the 2018 LOF and historical observations of sperm whale
and killer whale interactions with research longline gear, we also
infer vulnerability

[[Page 46805]]

to interaction with longline gear for killer whales (Alaska resident
stock only) and sperm whales (North Pacific stock only). Although we
generally believe that, despite records of interaction with analogous
commercial fisheries, the potential for incidental take of any large
whale (i.e., baleen whales or sperm whale), beaked whale, or killer
whale in research gear is so unlikely as to be discountable, there is a
long history of attempted depredation of longline gear by animals from
these stocks in Alaska, with take of these species having occurred in
commercial fisheries. Between 2010 and 2014, five sperm whales are
recorded as having been seriously injured in the Gulf of Alaska
sablefish longline fishery, while there have been two instances of
killer whale M/SI in BSAI longline fisheries (Helker et al., 2016).
Cetaceans have never been caught or entangled in AFSC or IPHC longline
research gear. If interactions occur, marine mammals depredate hooked
fish from the gear, but typically leave the hooks attached although
occasionally bent or broken (i.e., evidence of the interaction).
Certain species, particularly killer whales in the Bering Sea and sperm
whales in the Gulf of Alaska, are commonly attracted to longline
fishing operations and are adept at removing fish from longline gear as
it is retrieved. Although we consider it unlikely that AFSC or IPHC
research activities would result in any takes of either sperm whales or
killer whales, AFSC requested the authorization of such take as a
precautionary measure, given the observed interactions of these species
with research longline gear. Since longline depredation by sperm whales
is known to occur only in Alaskan waters, requested take is limited to
the North Pacific stock. Commercial fishery takes have been reported
for both transient and resident stocks of killer whale. However, the
Alaska resident stock consumes fish (e.g., Herman et al., 2005) and is
most likely to be involved in depredation of research catch. In
contrast, transient killer whales feed on marine mammals and are less
likely to interact with research longline gears, and the limited effort
for AFSC and IPHC research surveys compared to commercial fisheries
does not justify take authorization for transient whales.
Although there are LOF interaction records in longlines for
stenellid dolphin species, the harbor porpoise, and the northern
elephant seal, we do not authorize take of these species through use of
longline. No take is anticipated for the striped dolphin or for the
long-beaked stock of common dolphin and coastal stock of bottlenose
dolphin because of their expected pelagic and southerly distributions
(respectively) relative to expected IPHC survey effort. Harbor porpoise
have only been recorded as taken in commercial fisheries through use of
pelagic longline in the Atlantic Ocean; there are no records of
incidental take of harbor porpoise in longline fisheries in Alaska or
off the U.S. west coast. Similarly, the LOF indicates that elephant
seal interaction occurred only in a Hawaiian pelagic longline fishery.
As described for trawl gear, it is also possible that a captured
animal may not be able to be identified to species with certainty.
Although we expect that cetaceans would likely be able to be identified
when captured in longline gear, pinnipeds are considered more likely to
escape before the animal may be identified. Therefore, the AFSC
requested the authorization of incidental take for one unidentified
pinniped for each relevant research area, in addition to one
unidentified pinniped captured in IPHC surveys, over the course of the
five-year period of authorization.
Gillnet--The process is the same as is described above for trawl
gear. From the 2018 LOF, we infer vulnerability to gillnet gear for the
Pacific white-sided dolphin, harbor porpoise, Dall's porpoise, harbor
seal, northern fur seal, and Steller sea lion. Gillnets are used only
in Prince William Sound and at Little Port Walter in southeast Alaska.
Therefore, only one take is authorized for relevant stocks of the
vulnerable species over the 5-year period. This includes both the
eastern Pacific and California stocks of northern fur seal and the
Prince William Sound and Sitka/Chatham Strait stocks of harbor seal.
Although there are LOF interaction records in gillnets for the sperm
whale, beluga whale, and the northern elephant seal, we do not expect
these species to be present in areas where AFSC plans to use gillnet
research gear and no take of these species through use of gillnet is
authorized.
AFSC also expects that there may be an interaction resulting in
escape of an unidentified cetacean in gillnet gear, and requested the
authorization of incidental take for one unidentified cetacean over the
course of the five-year period of authorization.

Table 5--Total Estimated Take Due to Gear Interaction, 2019-24 1
----------------------------------------------------------------------------------------------------------------
Estimated 5-
Estimated 5-year year total, Estimated 5-
Species Estimated 5-year total, longline longline year total, Total, all
total, trawl (AFSC) (IPHC) 2 gillnet gears

----------------------------------------------------------------------------------------------------------------
Sperm whale (North Pacific)..... ................... 1 (GOARA)......... 1 ........... 2
Beluga whale (eastern Chukchi).. 1 (CSBSRA)......... .................. ........... ........... 1
Beluga whale (Beaufort Sea)..... 1 (CSBSRA)......... .................. ........... ........... 1
Bottlenose dolphin (offshore)... ................... .................. 1 ........... 1
Common dolphin.................. ................... .................. 1 ........... 1
Pacific white-sided dolphin..... 5 (GOARA).......... .................. ........... 1 6
Risso's dolphin................. ................... .................. 1 ........... 1
Killer whale (Alaska resident).. ................... 1 (BSAIRA)........ 1 ........... 2
Short-finned pilot whale........ ................... .................. 1 ........... 1
Harbor porpoise (Southeast ................... .................. ........... ........... 1
Alaska) 3.
Harbor porpoise (Gulf of Alaska) 1.................. .................. ........... 1 2
Harbor porpoise (Bering Sea).... 1.................. .................. ........... ........... 1
Dall's porpoise................. 10 (5 GOARA/5 2 (1 GOARA/1 1 1 14
BSAIRA). BSAIRA).
Northern fur seal (eastern 10 (5 GOARA/5 2 (1 GOARA/1 5 1 13-18
Pacific). BSAIRA). BSAIRA).
Northern fur seal (California).. 1 (GOARA).......... 1 (GOARA)......... ........... 1 3-8
California sea lion............. ................... .................. 1 ........... 1
Steller sea lion (eastern)...... 5.................. 1................. 5 1 7-12
Steller sea lion (western)...... 10 (5 GOARA/5 2 (1 GOARA/1 1 13-18
BSAIRA). BSAIRA).
Bearded seal.................... 2 (1 BSAIRA/1 .................. ........... ........... 2
CSBSRA).
Harbor seal \4\................. 12................. .................. 5 2 19
Spotted seal.................... 2 (1 BSAIRA/1 .................. 1 ........... 3
CSBSRA).
Ringed seal..................... 2 (1 BSAIRA/1 1................. 1 ........... 4
CSBSRA).
Ribbon seal..................... 2 (1 BSAIRA/1 .................. ........... ........... 2
CSBSRA).
Northern elephant seal.......... 1.................. .................. ........... ........... 1

[[Page 46806]]

Unidentified pinniped 5......... 3.................. 2................. 1 ........... 6
Unidentified small cetacean 6... 2.................. .................. ........... 1 3
----------------------------------------------------------------------------------------------------------------
\1\ Please see Table 4 and preceding text for derivation of take estimates. Takes numbers are informed by area-
and gear-specific vulnerability. However, IPHC longline takes are considered separately. AFSC use of gillnets
occurs only in the GOARA. Only trawl gear is used in the CSBSRA.
\2\ Potential IPHC takes are not specific to any area or stock. For example, the one expected take of Dall's
porpoise could occur to an individual of either the CA/OR/WA or Alaska stocks. For harbor seals, although five
total takes may occur over the 5-year period of the regulations, no more than one take is anticipated from any
given stock.
\3\ For harbor porpoise in southeast Alaska, we authorize take of one animal in all gears combined (i.e., trawl
and gillnet) over the 5-year period. In general, harbor porpoise would be expected to have the same
vulnerability to particular gears regardless of stock. However, AFSC plans to use acoustic pingers on surface
trawl nets in southeast Alaska, reducing the likelihood of porpoise interaction with that gear. Use of
acoustic pingers is planned for gillnets in both southeast Alaska and in the Gulf of Alaska.
\4\ For trawl gear, the numbers include one take during the 5-year period for each Alaskan harbor seal stock
(three stocks in BSAIRA and nine stocks in GOARA). For gillnet gear, the numbers include one take during the 5-
year period for the Prince William Sound and Sitka/Chatham Strait stocks. For IPHC longline surveys, the five
takes could occur for any harbor seal stock, though no more than one take would be expected to occur over the
5-year period for any given stock.
\5\ Includes one unidentified pinniped in each research area (trawl) and one unidentified pinniped in the GOARA
and BSAIRA and for IPHC surveys (longline).
\6\ Includes one unidentified small cetacean in the GOARA and BSAIRA (trawl) and one unidentified cetacean in
the GOARA (gillnet). This is not anticipated to apply to harbor porpoise in southeast Alaska, as the already
low probability of gear interaction is further reduced through use of additional mitigation (described in
footnote 3).

Whales--For large whales (baleen whales and sperm whales) and small
whales (considered here to be beaked whales, Kogia spp., and killer
whales), observed M/SI is extremely rare for trawl and gillnet gear
and, for most of these species, only slightly more common in longline
gear. Furthermore, with the exception of sperm whales and killer whales
(who attempt to depredate longline gear), most of these species
longline interactions are with pelagic gear. Baleen whale interactions
with longline gear represent entanglements in pelagic mainlines, while
beaked whales and Kogia spp. typically have a pelagic distribution
resulting in a lack of spatial overlap with bottom longline fisheries.
Although whale species could become captured or entangled in AFSC gear,
the probability of interaction is extremely low considering the lower
level of effort relative to that of commercial fisheries. For example,
there were estimated to be three total incidents of sperm whale M/SI in
the Hawaii deep-set longline fishery over a five-year period. This
fishery has 129 participants, and the fishery as a whole exerts
substantially greater effort in a given year than does the AFSC. In a
very rough estimate, we can say that these three estimated incidents
represent an insignificant per-participant interaction rate of 0.005
per year, despite the greater effort. Similarly, there were zero
documented interactions over a five-year period in the Atlantic Ocean,
Caribbean, Gulf of Mexico large pelagics longline fishery, despite a
reported fishing effort of 8,044 sets and 5,955,800 hooks in 2011 alone
(Garrison and Stokes, 2012). With an average soak time of ten to
fourteen hours, this represents an approximate minimum of almost sixty
million hook hours. AFSC and IPHC effort is a small fraction of this
per year. Other large whales and small whales have similarly low rates
of interaction with commercial fisheries, despite the significantly
greater effort. In addition, most large whales and small whales
generally have, with few exceptions, very low densities in areas where
AFSC and IPHC research occurs relative to other species (see Tables 6-
8). With exceptions for sperm whales and killer whales that are known
to depredate research longline gear in particular locations, we believe
it extremely unlikely that any large whale or small whale would be
captured or entangled in AFSC research gear.

Estimated Take Due to Acoustic Harassment

As described in our Notice of Proposed Rulemaking (August 1, 2018;
83 FR 37638; ``Potential Effects of the Specified Activity on Marine
Mammals and Their Habitat''), we believe that AFSC use of active
acoustic sources has, at most, the potential to cause Level B
harassment of marine mammals. In order to attempt to quantify the
potential for Level B harassment to occur, NMFS (including the AFSC and
acoustics experts from other parts of NMFS) developed an analytical
framework considering characteristics of the active acoustic systems
described in our Notice of Proposed Rulemaking (August 1, 2018; 83 FR
37638) under ``Description of Active Acoustic Sound Sources,'' their
expected patterns of use, and characteristics of the marine mammal
species that may interact with them. We believe that this quantitative
assessment benefits from its simplicity and consistency with current
NMFS acoustic guidance regarding Level B harassment but caution that,
based on a number of deliberately precautionary assumptions, the
resulting take estimates are likely an overestimate of the potential
for behavioral harassment to occur as a result of the operation of
these systems. Additional details on the approach used and the
assumptions made that result in these estimates are described below.
As discussed in in our Notice of Proposed Rulemaking (August 1,
2018; 83 FR 37638), available information suggests that the likelihood
of auditory injury occurring is exceedingly small. Therefore, potential
auditory injury is not considered further in this analysis.
The assessment paradigm for active acoustic sources used in AFSC
fisheries research is relatively straightforward and has a number of
key simplifying assumptions. NMFS's current acoustic guidance requires
in most cases that we assume Level B harassment occurs when a marine
mammal receives an acoustic signal at or above a simple step-function
threshold. Estimating the number of exposures at the specified received
level (160 dB rms) requires several determinations, each of which is
described sequentially below:
(1) A detailed characterization of the acoustic characteristics of
the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those
associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around
these sources; and
(4) An estimate of the average density for marine mammal species in
each area of operation.
Quantifying the spatial and temporal dimension of the sound
exposure footprint (or ``swath width'') of the active acoustic devices
in operation on moving vessels and their relationship to the average
density of marine mammals enables a quantitative estimate of the number
of individuals for which sound

[[Page 46807]]

levels exceed the relevant threshold for each area. The number of
potential incidents of Level B harassment is ultimately estimated as
the product of the volume of water ensonified at 160 dB rms or higher
(to a maximum depth of 500 m) and the volumetric density of animals
determined from simple assumptions about their vertical stratification
in the water column. Specifically, reasonable assumptions based on what
is known about diving behavior across different marine mammal species
were made to segregate those that predominately remain in the upper 200
m of the water column versus those that regularly dive deeper during
foraging and transit. Because depths range dramatically along the
margin of the continental slope that define the outer edge of the
survey areas, but deeper surveyed depths rarely range over 500 m in
practice, the depth range for determining volumes was set at 500 m for
deep diving species. We described the approach used (including methods
for estimating each of the calculations described above) and the
assumptions made that result in conservative estimates in significant
detail in our Notice of Proposed Rulemaking (August 1, 2018; 83 FR
37638). There have been no changes made to the approach, the
informational inputs, or the results. Therefore, we do not repeat the
discussion here and refer the reader to the Notice of Proposed
Rulemaking. Summaries of the results are provided in Table 6-8 below.
Note that the IPHC does not use active acoustic systems for data
acquisition purposes; therefore, potential Level B harassment is only
considered for AFSC survey operations in the GOARA, BSAIRA, and CSBSRA.

Table 6--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the GOARA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Volumetric Estimated Level B Estimated Level B
Area density density harassment, 0-200 m harassment, >200 m
Species Shallow Deep (animals/km2) (animals/km3) -------------------------------------------- Total
1 2 EK60 ES60 EK60 ES60
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale................ X .......... 0.005 0.027 0.1 ......... ......... ......... 1
Gray whale............................... X .......... 1.700 8.500 4,649.4 ......... ......... ......... 4,650
Humpback whale (CNP)..................... X .......... 0.065 0.327 115.4 ......... ......... ......... 116
Humpback whale (WNP)..................... X .......... 0.001 0.004 1.2 ......... ......... ......... 2
Minke whale.............................. X .......... 0.001 0.006 2.1 ......... ......... ......... 3
Sei whale................................ X .......... 0.000 0.000 0.01 ......... ......... ......... 1
Fin whale................................ X .......... 0.020 0.100 35.3 ......... ......... ......... 36
Blue whale............................... X .......... 0.000 0.001 0.2 ......... ......... ......... 1
Sperm whale.............................. .......... X 0.001 0.002 0.7 0.2 1.3 0.2 3
Cuvier's beaked whale.................... .......... X 0.000 0.000 0.1 0 0.1 0 1
Baird's beaked whale..................... .......... X 0.002 0.003 1.2 0.3 2.1 0.3 4
Stejneger's beaked whale................. .......... X 0.005 0.010 3.6 0.8 6.4 0.8 12
Beluga whale (Cook Inlet) 3.............. X .......... 0.200 1.000 ......... 2.5 ......... ......... 3
Pacific white-sided dolphin.............. X .......... 0.015 0.075 26.5 5.9 ......... ......... 33
Killer whale (offshore).................. X .......... 0.011 0.055 19.4 4.3 ......... ......... 24
Killer whale (west coast transient)...... X .......... 0.006 0.028 9.9 2.2 ......... ......... 13
Killer whale (AT1 transient)............. X .......... 0.001 0.004 1.2 0.3 ......... ......... 2
Killer whale (GOA/BSAI transient)........ X .......... 0.001 0.004 1.2 0.3 ......... ......... 2
Killer whale (northern resident)......... X .......... 0.003 0.013 4.4 1.0 ......... ......... 6
Killer whale (AK resident)............... X .......... 0.009 0.045 15.9 3.5 ......... ......... 20
Harbor porpoise (GOA).................... X .......... 0.200 1.000 547.0 102.9 ......... ......... 650
Harbor porpoise (SEAK)................... X .......... 0.110 0.550 300.8 56.6 ......... ......... 358
Dall's porpoise.......................... X .......... 1.600 8.000 4,375.9 823.3 ......... ......... 5,200
Northern fur seal (CA) 4................. X .......... 0.044 0.219 119.5 22.5 ......... ......... 143
Northern fur seal (EP--winter) 5......... X .......... 0.377 1.883 458.0 ......... ......... ......... 459
Northern fur seal (EP--summer)........... X .......... 0.116 0.582 176.7 59.9 ......... ......... 237
Steller sea lion (eastern; GOA-wide)..... X .......... 0.059 0.294 160.8 30.3 ......... ......... 192
Steller sea lion (eastern; E144)......... X .......... 0.221 1.103 603.3 113.5 ......... ......... 717
Steller sea lion (eastern; W144)......... X .......... 0.001 0.006 3.3 0.6 ......... ......... 4
Steller sea lion (western; GOA-wide)..... X .......... 0.035 0.176 96.0 18.1 ......... ......... 115
Steller sea lion (western; E144)......... X .......... 0.003 0.015 7.9 1.5 ......... ......... 10
Steller sea lion (western; W144)......... X .......... 0.048 0.239 130.7 24.6 ......... ......... 156
Harbor seal (Clarence Strait)............ X .......... 0.099 0.494 174.6 38.7 ......... ......... 214
Harbor seal (Dixon/Cape Decision)........ X .......... 0.057 0.283 99.9 22.1 ......... ......... 123
Harbor seal (Sitka/Chatham Strait)....... X .......... 0.046 0.232 82.0 18.2 ......... ......... 101
Harbor seal (Lynn Canal/Stephens Passage) X .......... 0.030 0.148 52.3 11.6 ......... ......... 64
Harbor seal (Glacier Bay/Icy Strait)..... X .......... 0.022 0.113 39.8 8.8 ......... ......... 49
Harbor seal (Cook Inlet/Shelikof Strait). X .......... 0.031 0.156 54.9 12.2 ......... ......... 68
Harbor seal (Prince William Sound)....... X .......... 0.061 0.303 107.2 23.7 ......... ......... 131
Harbor seal (South Kodiak)............... X .......... 0.022 0.109 38.6 8.5 ......... ......... 48
Harbor seal (North Kodiak)............... X .......... 0.009 0.472 16.7 3.7 ......... ......... 21
Northern elephant seal................... .......... X 0.020 0.045 15.9 3.5 28.3 3.6 52
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Sources and derivation of marine mammal density information are provided in Table 6-10d of AFSC's application.
2 Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
with defined depth strata.
3 The EK60 is not used in areas of Cook Inlet where beluga whales may be present.
4 Individuals from the California stock of northern fur seals are assumed to occur only east of 144[deg] W.
5 The EK60 is not used in winter in areas where the northern fur seal may be present.

[[Page 46808]]

Table 7--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the BSAIRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Volumetric Estimated Level B harassment, 0- Estimated Level B
Area density density 200 m harassment, >200 m
Species Shallow Deep (animals/km2) (animals/km3) ------------------------------------------------------- Total
1 2 EK60 ES60 7111 EK60 ES60
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale..... X .......... 0.000 0.002 0.1 ......... ......... ......... ......... 1
Bowhead whale................. X .......... 0.017 0.085 41.5 ......... ......... ......... ......... 42
Gray whale.................... X .......... 0.380 1.900 928.5 ......... ......... ......... ......... 929
Humpback whale (CNP).......... X .......... 0.018 0.092 45.0 ......... ......... ......... ......... 45
Humpback whale (WNP).......... X .......... 0.002 0.008 3.9 ......... ......... ......... ......... 4
Minke whale................... X .......... 0.002 0.011 4.3 ......... ......... ......... ......... 5
Sei whale..................... X .......... 0.000 0.001 0.4 ......... ......... ......... ......... 1
Fin whale..................... X .......... 0.001 0.007 3.4 ......... ......... ......... ......... 4
Sperm whale................... .......... X 0.008 0.016 6.5 5.5 0.3 4.2 1.9 19
Cuvier's beaked whale......... .......... X 0.000 0.000 0.1 0.1 0 0 0 1
Baird's beaked whale.......... .......... X 0.002 0.003 1.4 1.2 0.1 0.9 0.4 4
Stejneger's beaked whale...... .......... X 0.001 0.002 1.0 0.8 0 0.6 0.3 3
Beluga whale (Bristol Bay) 3.. X .......... 0.700 3.500 ......... ......... ......... ......... ......... 0
Beluga whale (eastern Bering X .......... 0.242 0.484 493.7 419.5 24.9 ......... ......... 939
Sea).........................
Pacific white-sided dolphin... X .......... 0.005 0.027 11.0 9.4 0.6 ......... ......... 21
Killer whale (offshore)....... X .......... 0.011 0.055 22.4 19.1 1.1 ......... ......... 43
Killer whale (GOA/BSAI X .......... 0.003 0.013 5.3 4.5 0.3 ......... ......... 11
transient)...................
Killer whale (AK resident).... X .......... 0.001 0.005 2.0 1.7 0.1 ......... ......... 4
Harbor porpoise (Bering Sea).. X .......... 0.450 2.250 918.1 780.1 46.3 ......... ......... 1,745
Dall's porpoise............... X .......... 0.033 0.164 79.9 58.8 3.4 ......... ......... 143
Northern fur seal (EP--winter) X .......... 0.075 0.377 18.2 ......... ......... ......... ......... 19
4............................
Northern fur seal (EP--summer) X .......... 0.215 1.075 473.6 386.6 ......... ......... ......... 861
Steller sea lion (eastern).... X .......... 0.000 0.001 0.2 0.2 ......... ......... ......... 1
Steller sea lion (western).... X .......... 0.012 0.060 29.1 21.4 ......... ......... ......... 51
Bearded seal.................. X .......... 0.394 1.968 961.5 707.4 ......... ......... ......... 1,669
Harbor seal (Aleutian Islands) X .......... 0.003 0.014 5.9 5.0 ......... ......... ......... 11
Harbor seal (Pribilof Islands) X .......... 0.000 0.001 0.2 0.2 ......... ......... ......... 1
Harbor seal (Bristol Bay)..... X .......... 0.015 0.072 29.5 25.1 ......... ......... ......... 55
Spotted seal.................. X .......... 0.601 3.006 1,125.1 827.8 ......... ......... ......... 1,953
Ringed seal................... X .......... 0.349 1.746 853.3 627.7 ......... ......... ......... 1,481
Ribbon seal................... X .......... 0.241 1.204 450.5 331.4 ......... ......... ......... 782
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Sources and derivation of marine mammal density information are provided in Table 6-10d of AFSC's application.
2 Volumetric density estimates derived by dividing area density estimates by 0.2 km (for shallow species) or 0.5 km (for deep species), corresponding
with defined depth strata.
3 Acoustic sources considered in this analysis are not used in areas of Bristol Bay where beluga whales may occur.
4 The ES60 is not used during winter in BSAIRA.

Table 8--Densities and Estimated Source-, Stratum-, and Species-Specific Annual Estimates of Level B Harassment in the CSBSRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated
Volumetric Level B
Area density density harassment, 0-
Species Shallow Deep (animals/km2) (animals/km3) 200 m Total
1 2 ----------------
ES60
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bowhead whale................................................... X .......... 2.270 11.350 .............. 0
Gray whale...................................................... X .......... 0.010 0.050 .............. 0
Humpback whale (CNP)............................................ X .......... 0.000 0.001 .............. 0
Humpback whale (WNP)............................................ X .......... 0.000 0.000 .............. 0
Minke whale..................................................... X .......... 0.000 0.001 .............. 0
Fin whale....................................................... X .......... 0.000 0.001 .............. 0
Beluga whale (Beaufort Sea)..................................... X .......... 0.008 0.040 3.0 3
Beluga whale (eastern Chukchi Sea).............................. X .......... 0.008 0.040 3.0 3
Killer whale (GOA/BSAI transient)............................... X .......... 0.000 0.000 0.003 1
Harbor porpoise (Bering Sea).................................... X .......... 0.000 0.001 0.03 1
Bearded seal.................................................... X .......... 0.175 0.875 58.0 58
Spotted seal.................................................... X .......... 0.460 2.302 152.5 153
Ringed seal..................................................... X .......... 1.765 8.825 584.6 585
Ribbon seal..................................................... X .......... 0.184 0.922 75 62
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Sources and derivation of marine mammal density information are provided in Table 6-10d of AFSC's application.
2 Volumetric density estimates derived by dividing area density estimates by 0.2 km.

[[Page 46809]]

Estimated Take Due to Physical Disturbance

Take due to physical disturbance could potentially happen, as it is
likely that some pinnipeds will move or flush from known haul-outs into
the water in response to the presence or sound of AFSC vessels or
researchers. Such events could occur as a result of unintentional
approach during survey activity, in the GOARA or BSAIRA only. Physical
disturbance would result in no greater than Level B harassment.
Behavioral responses may be considered according to the scale shown in
Table 9 and based on the method developed by Mortenson (1996). We
consider responses corresponding to Levels 2-3 to constitute Level B
harassment.

Table 9--Pinniped Response to Disturbance
------------------------------------------------------------------------
Type of
Level response Definition
------------------------------------------------------------------------
1............ Alert.......... Seal head orientation or brief movement
in response to disturbance, which may
include turning head towards the
disturbance, craning head and neck
while holding the body rigid in a u-
shaped position, changing from a lying
to a sitting position, or brief
movement of less than twice the
animal's body length.
2............ Movement....... Movements away from the source of
disturbance, ranging from short
withdrawals at least twice the animal's
body length to longer retreats over the
beach, or if already moving a change of
direction of greater than 90 degrees.
3............ Flight......... All retreats (flushes) to the water.
------------------------------------------------------------------------

The AFSC estimated potential incidents of Level B harassment due to
physical disturbance (Table 10) by considering the number of seals
believed to potentially be present at affected haul-outs or rookeries
and the number of visits within a certain distance of the haul-out
expected to be made by AFSC researchers. The take estimation method was
described in detail in our Notice of Proposed Rulemaking (August 1,
2018; 83 FR 37638). AFSC does not believe that any research activities
would result in physical disturbance of pinnipeds other than Steller
sea lions or harbor seals. Similarly, no disturbance is expected of
eastern Steller sea lions due to a lack of overlap between known haul-
outs or rookeries and research activities.
Although not all individuals on ``disturbed'' haul-outs would
necessarily actually be disturbed, and some haul-outs may experience
some disturbance at distances greater than expected, we believe that
this approach is a reasonable effort towards accounting for this
potential source of disturbance. The results are likely overestimates,
because some activities may only be one-time, sporadic, or biennial
activities, but are assumed to happen on an annual basis.

Table 10--Estimated Annual Level B Harassment of Pinnipeds Associated
With Disturbance by Researchers
------------------------------------------------------------------------
Estimated annual
Species Stock Level B
harassment
------------------------------------------------------------------------
Harbor seal................... Clarence Strait...... 28
Dixon/Cape Decision.. 30
Sitka/Chatham Strait. 864
Lynn Canal/Stephens 45
Passage.
Glacier Bay/Icy 20
Strait.
Cook Inlet/Shelikof 2,554
Strait.
Prince William Sound. 3,063
South Kodiak......... 3,761
North Kodiak......... 885
Bristol Bay.......... 132
Pribilof Islands..... 28
Aleutian Islands..... 290
Steller sea lion.............. Western DPS (GOARA).. 3,082
Western DPS (BSAIRA). 112
------------------------------------------------------------------------

Effects of Specified Activities on Subsistence Uses of Marine Mammals

The availability of the affected marine mammal stocks or species
for subsistence uses may be impacted by this activity. The subsistence
uses that may be affected and the potential impacts of the activity on
those uses are described in section 8 of the AFSC's application.
Measures included in this rulemaking to reduce the impacts of the
activity on subsistence uses are described in Appendix B of the AFSC's
application. For full details, please see those documents. Last, the
information from this section and the Mitigation section is analyzed to
determine whether the necessary findings may be made in the Unmitigable
Adverse Impact Analysis and Determination section.

Mitigation

Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the
permissible methods of taking pursuant to such activity, and other
means of effecting the least practicable adverse impact on such species
or stock and its habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of such species or stock for taking for certain
subsistence uses (``least practicable adverse impact''). NMFS does not
have a regulatory definition for ``least practicable adverse impact.''
However, NMFS's implementing regulations require applicants for
incidental take authorizations to include information about the
availability and feasibility (economic and technological) of equipment,
methods, and manner of conducting such activity or other means of
effecting the least practicable adverse impact upon the affected
species or

[[Page 46810]]

stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, implementation of
the measure(s) is expected to reduce impacts to marine mammal species
or stocks, their habitat, and their availability for subsistence uses.
This analysis will consider such things as the nature of the potential
adverse impact (such as likelihood, scope, and range), the likelihood
that the measure will be effective if implemented, and the likelihood
of successful implementation.
(2) The practicability of the measure for applicant implementation.
Practicability of implementation may consider such things as cost,
impact on operations, personnel safety, and practicality of
implementation.
The following suite of mitigation measures and procedures, i.e.,
measures taken to monitor, avoid, or minimize the encounter and
potential take of marine mammals, will be employed by the AFSC during
research cruises and activities. These procedures are the same whether
the survey is conducted AFSC, IPHC, or is an AFSC-supported survey,
which may be conducted onboard a variety of vessels, e.g., on board a
NOAA vessel or charter vessel. The procedures described are based on
protocols used during previous research surveys and/or best practices
developed for commercial fisheries using similar gear. The AFSC
conducts a large variety of research operations, but only activities
using trawl, longline, and gillnet gears are expected to present a
reasonable likelihood of resulting in incidental take of marine
mammals. AFSC's past survey operations have resulted in marine mammal
interactions. These protocols are designed to continue the past record
of few interactions while providing credible, documented, and safe
encounters with observed or captured animals. Mitigation procedures
will be focused on those situations where mammals, in the best
professional judgement of the vessel operator and Chief Scientist (CS),
pose a risk of incidental take. In many instances, the AFSC will use
streamlined protocols and training for protected species developed in
collaboration with the North Pacific Groundfish and Halibut Observer
Program.
The AFSC has invested significant time and effort in identifying
technologies, practices, and equipment to minimize the impact of the
proposed activities on marine mammal species and stocks and their
habitat. These efforts have resulted in the consideration of many
potential mitigation measures, including those the AFSC has determined
to be feasible and has implemented in recent years as a standard part
of sampling protocols. These measures include the move-on rule
mitigation protocol (also referred to in the preamble as the move-on
rule), protected species visual watches and use of acoustic pingers on
gillnet gear and on surface trawls in southeast Alaska.
Effective monitoring is a key step in implementing mitigation
measures and is achieved through regular marine mammal watches. Marine
mammal watches are a standard part of conducting AFSC fisheries
research activities, particularly those activities that use gears that
are known to or potentially interact with marine mammals. Marine mammal
watches and monitoring occur during daylight hours prior to deployment
of gear (e.g., trawls, gillnets, and longline gear), and they continue
until gear is brought back on board. If marine mammals are sighted in
the area and are considered to be at risk of interaction with the
research gear, then the sampling station is either moved or canceled or
the activity is suspended until the marine mammals are no longer in the
area. On smaller vessels, the CS and the vessel operator are typically
those looking for marine mammals and other protected species. When
marine mammal researchers are on board (distinct from marine mammal
observers dedicated to monitoring for potential gear interactions),
they will record the estimated species and numbers of animals present
and their behavior using protocols similar or adapted from the North
Pacific Groundfish and Halibut Observer Program. If marine mammal
researchers are not on board or available, then the CS in cooperation
with the vessel operator will monitor for marine mammals and provide
training as practical to bridge crew and other crew to observe and
record such information. Because marine mammals are frequently observed
in Alaskan waters, marine mammal observations may be limited to those
animals that directly interact with or are near to the vessel or gear.
NOAA vessels, chartered vessels, and affiliated vessels or studies are
required to monitor interactions with marine mammals but are limited to
reporting direct interactions, dead animals, or entangled whales.

General Measures

Coordination and Communication--When AFSC survey effort is
conducted aboard NOAA-owned vessels, there are both vessel officers and
crew and a scientific party. Vessel officers and crew are not composed
of AFSC staff but are employees of NOAA's Office of Marine and Aviation
Operations (OMAO), which is responsible for the management and
operation of NOAA fleet ships and aircraft and is composed of uniformed
officers of the NOAA Commissioned Corps as well as civilians. The
ship's officers and crew provide mission support and assistance to
embarked scientists, and the vessel's Commanding Officer (CO) has
ultimate responsibility for vessel and passenger safety and, therefore,
decision authority. When AFSC survey effort is conducted aboard
cooperative platforms (i.e., non-NOAA vessels), ultimate responsibility
and decision authority again rests with non-AFSC personnel (i.e.,
vessel's master or captain). Decision authority includes the
implementation of mitigation measures (e.g., whether to stop deployment
of trawl gear upon observation of marine mammals). The scientific party
involved in any AFSC survey effort is composed, in part or whole, of
AFSC staff and is led by a CS. Therefore, because the AFSC--not OMAO or
any other entity that may have authority over survey platforms used by
AFSC--is the applicant to whom any incidental take authorization issued
under the authority of these regulations would be issued, we require
that the AFSC take all necessary measures to coordinate and communicate
in advance of each specific survey with OMAO, or other relevant
parties, to ensure that all mitigation measures and monitoring
requirements described herein, as well as the specific manner of
implementation and relevant event-contingent decision-making processes,
are clearly understood and agreed-upon. This may involve description of
all required measures when submitting cruise instructions to OMAO or
when completing contracts with external entities. AFSC will coordinate
and conduct briefings at the outset of each survey and as necessary
between ship's crew (CO/master or designee(s), as appropriate) and
scientific party in order to explain responsibilities, communication
procedures, marine mammal monitoring protocol, and operational
procedures. The CS will be responsible for coordination with the
Officer on Deck (OOD; or equivalent on non-NOAA platforms) to ensure
that requirements, procedures, and decision-

[[Page 46811]]

making processes are understood and properly implemented.
As described previously, for IPHC longline survey operations,
applicable mitigation, monitoring, and reporting requirements would be
conveyed from the AFSC to the IPHC via Letters of Acknowledgement
issued by the AFSC pursuant to the MSA. Although IPHC survey effort is
not conducted aboard NOAA platforms, the same communication and
coordination requirements would apply to IPHC surveys.
Vessel Speed--Vessel speed during active sampling rarely exceeds 5
kn, with typical speeds being 2-4 kn. Transit speeds vary from 6-14 kn
but average 10 kn. These low vessel speeds minimize the potential for
ship strike (see ``Potential Effects of the Specified Activity on
Marine Mammals and Their Habitat'' in our Notice of Proposed Rulemaking
(August 1, 2018; 83 FR 37638) for an in-depth discussion of ship
strike). In addition, when research vessels are operating in areas and
times where greater risk is expected due to marine mammal presence,
e.g., Seguam Pass during humpback whale migration, additional crew are
brought up to the bridge to monitor for whales. In such cases vessel
captains may also reduce speed to improve the chances of observing
whales and avoiding them. At any time during a survey or in transit, if
a crew member or designated marine mammal observer standing watch
sights marine mammals that may intersect with the vessel course that
individual will immediately communicate the presence of marine mammals
to the bridge for appropriate course alteration or speed reduction, as
possible, to avoid incidental collisions.
Other Gears--The AFSC deploys a wide variety of gear to sample the
marine environment during all of their research cruises. Many of these
types of gear (e.g., plankton nets, video camera and ROV deployments)
are not considered to pose any risk to marine mammals and are therefore
not subject to specific mitigation measures. However, at all times when
the AFSC is conducting survey operations at sea, the OOD and/or CS and
crew will monitor for any unusual circumstances that may arise at a
sampling site and use best professional judgment to avoid any potential
risks to marine mammals during use of all research equipment.
Handling Procedures--Handling procedures are those taken to return
a live animal to the sea or process a dead animal. The AFSC will
implement a number of handling protocols to minimize potential harm to
marine mammals that are incidentally taken during the course of
fisheries research activities. In general, protocols have already been
prepared for use on commercial fishing vessels; these have been adapted
from the North Pacific Fishery Observer Manual. These procedures are
expected to increase post-release survival and, in general, following a
``common sense'' approach to handling captured or entangled marine
mammals will present the best chance of minimizing injury to the animal
and of decreasing risks to scientists and vessel crew. Handling or
disentangling marine mammals carries inherent safety risks, and using
best professional judgment and ensuring human safety is paramount.
Captured live or injured marine mammals are released from research
gear and returned to the water as soon as possible with no gear or as
little gear remaining on the animal as possible. Animals are released
without removing them from the water if possible and data collection is
conducted in such a manner as not to delay release of the animal(s) or
endanger the crew. AFSC staff will be instructed on how to identify
different species; handle and bring marine mammals aboard a vessel;
assess the level of consciousness; remove fishing gear; and return
marine mammals to water. For further information regarding handling
procedures, please see section 11.7 of AFSC's application.
Other Measures--AFSC scientists are aware of the need to prevent or
minimize disturbance of marine mammals when operating vessels nearshore
around pinniped rookeries and haul-outs, and other places where marine
mammals are aggregated. Minimum approaches shall be not less than 1 km
from the aggregation area.

Trawl Survey Visual Monitoring and Operational Protocols

Visual monitoring protocols, described above, are an integral
component of trawl mitigation protocols. Observation of marine mammal
presence and behaviors in the vicinity of AFSC trawl survey operations
allows for the application of professional judgment in determining the
appropriate course of action to minimize the incidence of marine mammal
gear interactions. The OOD, CS or other designated member of the
scientific party, and crew standing watch on the bridge visually scan
surrounding waters with the naked eye and rangefinding binoculars (or
monocular) for marine mammals prior to, during, and until all trawl
operations are completed. Some sets may be made at night or other
limited visibility conditions, when visual observation may be conducted
using the naked eye and available vessel lighting with limited
effectiveness.
Most research vessels engaged in trawling will have their station
in view for 15 minutes or 2 nmi prior to reaching the station,
depending upon the sea state and weather. Many vessels will inspect the
tow path before deploying the trawl gear, adding another 15 minutes of
observation time and gear preparation prior to deployment. Lookouts
immediately alert the OOD and CS as to their best estimate of the
species and number of animals observed and any observed animal's
distance, bearing, and direction of travel relative to the ship's
position. If any marine mammals are sighted around the vessel before
setting gear, the vessel may be moved away from the animals to a
different section of the sampling area if the animals appear to be at
risk of interaction with the gear. This is what is referred to as the
``move-on'' rule.
If marine mammals are observed at or near the station, the CS and
the vessel operator will determine the best strategy to avoid potential
takes based on the species encountered, their numbers and behavior,
their position and vector relative to the vessel, and other factors.
For instance, a whale transiting through the area and heading away from
the vessel may not require any move, or may require only a short move
from the initial sampling site, while a pod of dolphins gathered around
the vessel may require a longer move from the initial sampling site or
possibly cancellation of the station if the dolphins follow the vessel.
After moving on, if marine mammals are still visible from the vessel
and appear to be at risk, the CS may decide, in consultation with the
vessel operator, to move again or to skip the station. In many cases,
the survey design can accommodate sampling at an alternate site. In
most cases, gear is not deployed if marine mammals have been sighted
from the ship in its approach to the station unless those animals do
not appear to be in danger of interactions with the gear, as determined
by the judgment of the CS and vessel operator. The efficacy of the
``move-on'' rule is limited during night time or other periods of
limited visibility; although operational lighting from the vessel
illuminates the water in the immediate vicinity of the vessel during
gear setting and retrieval. In these cases, it is again the judgment of
the CS as based on experience and in consultation with the vessel
operator to exercise due diligence and to decide on appropriate course
of

[[Page 46812]]

action to avoid unintentional interactions.
Once the trawl net is in the water, the OOD, CS or other designated
scientist, and/or crew standing watch continue to monitor the waters
around the vessel and maintain a lookout for marine mammals as
environmental conditions allow (as noted previously, visibility can be
limited for various reasons). If marine mammals are sighted before the
gear is fully retrieved, the most appropriate response to avoid
incidental take is determined by the professional judgment of the OOD,
in consultation with the CS and vessel operator as necessary. These
judgments take into consideration the species, numbers, and behavior of
the animals, the status of the trawl net operation (net opening, depth,
and distance from the stern), the time it would take to retrieve the
net, and safety considerations for changing speed or course. If marine
mammals are sighted during haul-back operations, there is the potential
for entanglement during retrieval of the net, especially when the trawl
doors have been retrieved and the net is near the surface and no longer
under tension. The risk of catching an animal may be reduced if the
trawling continues and the haul-back is delayed until after the marine
mammal has lost interest in the gear or left the area. The appropriate
course of action to minimize the risk of incidental take is determined
by the professional judgment of the OOD, vessel operator, and the CS
based on all situation variables, even if the choices compromise the
value of the data collected at the station. We recognize that it is not
possible to dictate in advance the exact course of action that the OOD
or CS should take in any given event involving the presence of marine
mammals in proximity to an ongoing trawl tow, given the sheer number of
potential variables, combinations of variables that may determine the
appropriate course of action, and the need to prioritize human safety
in the operation of fishing gear at sea. Nevertheless, we require a
full accounting of factors that shape both successful and unsuccessful
decisions, and these details will be fed back into AFSC training
efforts and ultimately help to refine the best professional judgment
that determines the course of action taken in any given scenario (see
further discussion in ``Monitoring and Reporting'').
If trawling operations have been suspended because of the presence
of marine mammals, the vessel will resume trawl operations (when
practicable) only when the animals are believed to have departed the
area. This decision is at the discretion of the OOD/CS and is dependent
on the situation.
Standard survey protocols that are expected to lessen the
likelihood of marine mammal interactions include standardized tow
durations and distances. Standard bottom trawl tow durations of not
more than 15-30 minutes at the target depth will typically be
implemented, excluding deployment and retrieval time, to reduce the
likelihood of attracting and incidentally taking marine mammals. Short
tow durations, and the resulting short tow distances (typically 1-2
nmi), decrease the opportunity for marine mammals to find the vessel
and investigate. The scientific crew will avoid dumping previous
catches when the net is being retrieved, especially when the net is at
the surface at the trawl alley. This practice of dumping fish when the
net is near the vessel may train marine mammals to expect food when the
net is retrieved and may capture the protected species.
In operations in areas of southeast Alaska deploying surface nets,
several additional measures have been employed to minimize the
likelihood of marine mammal encounters, including no offal discard
prior to or during the trawling at a station, trawling of short
duration and seldom at night, no trawling less than one kilometer from
pinniped rookeries or haul-outs, and deployment of acoustic pingers
attached on the trawl foot or head ropes. Pingers are acoustic
deterrents that are intended to deter the presence of marine mammals
and therefore decrease the probability of entanglement or unintended
capture of marine mammals.
Acoustic Deterrent Devices--Acoustic deterrent devices (pingers)
are underwater sound-emitting devices that have been shown to decrease
the probability of interactions with certain species of marine mammals
when fishing gear is fitted with the devices. Multiple studies have
reported large decreases in harbor porpoise mortality (approximately
eighty to ninety percent) in bottom-set gillnets (nets composed of
vertical panes of netting, typically set in a straight line and either
anchored to the bottom or drifting) during controlled experiments
(e.g., Kraus et al., 1997; Trippel et al., 1999; Gearin et al., 2000;
Palka et al., 2008). Pingers (10 kHz, 132 dB, 300 ms every 4 s) would
be deployed on surface trawl nets deployed in southeast Alaska. Pingers
would also be deployed on gillnets. Please see ``Marine Mammal
Hearing'' for reference to functional and best hearing ranges for
marine mammals.

Longline Survey Visual Monitoring and Operational Protocols

Visual monitoring requirements for all longline surveys are similar
to the general protocols described above for trawl surveys. Please see
that section for full details of the visual monitoring protocol and the
move-on rule mitigation protocol. In summary, requirements for longline
surveys are to: (1) Conduct visual monitoring prior to arrival on
station; (2) implement the move-on rule if marine mammals are observed
within the area around the vessel and may be at risk of interacting
with the vessel or gear; (3) deploy gear as soon as possible upon
arrival on station (depending on presence of marine mammals); and (4)
maintain visual monitoring effort throughout deployment and retrieval
of the longline gear. As was described for trawl gear, the OOD, CS, or
watch leader will use best professional judgment to minimize the risk
to marine mammals from potential gear interactions during deployment
and retrieval of gear. If marine mammals are detected during setting
operations and are considered to be at risk, immediate retrieval or
suspension of operations may be warranted. If operations have been
suspended because of the presence of marine mammals, the vessel will
resume setting (when practicable) only when the animals are believed to
have departed the area. If marine mammals are detected during retrieval
operations and are considered to be at risk, haul-back may be
postponed. These decisions are at the discretion of the OOD/CS and are
dependent on the situation.
As for trawl surveys, some standard survey protocols are expected
to minimize the potential for marine mammal interactions. Soak times
are typically short relative to commercial fishing operations, measured
from the time the last hook is in the water to when the first hook is
brought out of the water. AFSC longline protocols specifically prohibit
chumming (releasing additional bait to attract target species to the
gear). Spent bait and offal are discarded away from the longline
retrieval area but not retained until completion of longline retrieval.
Due to the volume of fish caught with each set and the length of time
it takes to retrieve the longline (up to eight hours), the retention of
spent bait and offal until the gear is completely retrieved is not
possible.
Whales, particularly killer whales in the Bering Sea and sperm
whales in the Gulf of Alaska, are commonly attracted to longline
fishing operations and have learned how to remove fish from

[[Page 46813]]

longline gear as it is retrieved. Such depredation of fish off the
longline by whales can significantly affect catch rate and species
composition of data collected by the survey. The effect of depredation
activity on survey results has been a research subject for many years
and many aspects are therefore recorded as part of normal survey
protocols, including the amount of catch potentially depredated
(percent of empty hooks or damaged fish), number of whales visible,
behavior of whales, whale proximity to the vessel, and any whale/vessel
interactions. Sperm whale depredation can be difficult to determine
because they can alternate between diving deep to depredate the line
and swimming at the surface eating offal (see below). The presence of
sperm whales at the surface does not mean they are actively depredating
the line.
The Alaska Longline Survey uses bottom longline gear with a 16-km
mainline. Sets are made in the morning if no killer whales or sperm
whales are present and the longline gear is allowed to soak for three
hours before haul-back begins. Due to the length of the mainline and
numbers of hooks involved, it takes up to eight hours to complete the
haul-back. Whales have learned to associate particular sounds with
longline operations and typically arrive on scene as the gear is being
retrieved. Efforts have been made to avoid depredation by allowing the
line to sink back down but such strategies have proved impractical as
whales can wait in the area for days and fish caught on the line are
then eaten by other demersal marine organisms. The only practical way
to minimize depredation if whales find the vessel is to continue
retrieving the gear as quickly as possible. As killer whales may also
follow the survey vessel between stations, the station order has been
altered to disrupt the survey pattern as a means to dissuade the
animals from this behavior and to avoid continued interactions.

Gillnet Survey Visual Monitoring and Operational Protocols

Visual monitoring and operational protocols for gillnet surveys are
similar to those described previously for trawl surveys, with a focus
on visual observation in the survey area and avoidance of marine
mammals that may be at risk of interaction with survey vessels or gear.
Gillnets are not deployed if marine mammals have been sighted on
arrival at the sample site. The exception is for animals that, because
of their behavior, travel vector or other factors, do not appear to be
at risk of interaction with the gillnet gear. If no marine mammals are
present, the gear is set and monitored continuously during the soak. If
a marine mammal is sighted during the soak and appears to be at risk of
interaction with the gear, then the gear is pulled immediately. As
noted above, pingers would be deployed on gillnets, which are used only
at the Little Port Walter Research Station in southeast Alaska and in
Prince William Sound.
We have carefully evaluated the AFSC's planned mitigation measures
and considered a range of other measures in the context of ensuring
that we prescribed the means of effecting the least practicable adverse
impact on the affected marine mammal species and stocks and their
habitat. Based on our evaluation of these measures, we have determined
that the mitigation measures provide the means of effecting the least
practicable adverse impact on marine mammal species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such species
or stock for subsistence uses.

Monitoring and Reporting

In order to issue an LOA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of the authorized taking. NMFS's MMPA
implementing regulations further describe the information that an
applicant should provide when requesting an authorization (50 CFR
216.104(a)(13)), including the means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and the level of taking or impacts on populations of marine
mammals.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of significant interactions with marine mammal
species in action area (e.g., animals that came close to the vessel,
contacted the gear, or are otherwise rare or displaying unusual
behavior).
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or important physical components of marine
mammal habitat).
Mitigation and monitoring effectiveness.
AFSC plans to make more systematic its training, operations, data
collection, animal handling and sampling protocols, etc. in order to
improve its ability to understand how mitigation measures influence
interaction rates and ensure its research operations are conducted in
an informed manner and consistent with lessons learned from those with
experience operating these gears in close proximity to marine mammals.
It is in this spirit that we require the monitoring requirements
described below.

Visual Monitoring

Marine mammal watches are a standard part of conducting fisheries
research activities, and are implemented as described previously in
``Mitigation.'' Dedicated marine mammal visual monitoring occurs as
described (1) for some period prior to deployment of most research
gear; (2) throughout deployment and active fishing of all research
gears; (3) for some period prior to retrieval of longline gear; and (4)
throughout retrieval of all research gear. This visual monitoring is
performed by trained AFSC personnel or other trained crew during the
monitoring period. Observers record the species and estimated number of
animals present and their behaviors, which may be valuable information
towards an understanding of whether certain species may be attracted to
vessels or certain survey gears. Separately, marine mammal watches are
conducted by watch-standers (those navigating the vessel and other
crew; these will typically not be AFSC personnel) at all times when the
vessel is being operated. The primary focus for this type of watch is
to avoid striking marine mammals and to generally avoid navigational
hazards. These watch-standers typically have other duties associated
with navigation and other vessel operations and are not required to
record or report

[[Page 46814]]

to the scientific party data on marine mammal sightings, except when
gear is being deployed or retrieved.
AFSC will also monitor disturbance of hauled-out pinnipeds
resulting from the presence of researchers, paying particular attention
to the distance at which different species of pinniped are disturbed.
Disturbance will be recorded according to the three-point scale,
representing increasing seal response to disturbance, shown in Table 9.

Training

AFSC anticipates that additional information on practices to avoid
marine mammal interactions can be gleaned from training sessions and
more systematic data collection standards. The AFSC will conduct annual
trainings for all chief scientists and other personnel who may be
responsible for conducting marine mammal visual observations or
handling incidentally captured marine mammals to explain mitigation
measures and monitoring and reporting requirements, mitigation and
monitoring protocols, marine mammal identification, recording of count
and disturbance observations, completion of datasheets, and use of
equipment. Some of these topics may be familiar to AFSC staff, who may
be professional biologists; the AFSC shall determine the agenda for
these trainings and ensure that all relevant staff have necessary
familiarity with these topics. The AFSC will work with the North
Pacific Fisheries Groundfish and Halibut Observer Program to customize
a new training program. The first such training will include three
primary elements: (1) An overview of the purpose and need for the
authorization, including mandatory mitigation measures by gear and the
purpose for each, and species that AFSC is authorized to incidentally
take; (2) detailed descriptions of reporting, data collection, and
sampling protocols; and (3) discussion of best professional judgment
(which is recognized as an integral component of mitigation
implementation; see ``Mitigation'').
The second topic will include instruction on how to complete new
data collection forms such as the marine mammal watch log, the
incidental take form (e.g., specific gear configuration and details
relevant to an interaction with protected species), and forms used for
species identification and biological sampling.
The third topic will include use of professional judgment in any
incidents of marine mammal interaction and instructive examples where
use of best professional judgment was determined to be successful or
unsuccessful. We recognize that many factors come into play regarding
decision-making at sea and that it is not practicable to simplify what
are inherently variable and complex situational decisions into rules
that may be defined on paper. However, it is our intent that use of
best professional judgment be an iterative process from year to year,
in which any at-sea decision-maker (i.e., responsible for decisions
regarding the avoidance of marine mammal interactions with survey gear
through the application of best professional judgment) learns from the
prior experience of all relevant AFSC personnel (rather than from
solely their own experience). The outcome should be increased
transparency in decision-making processes where best professional
judgment is appropriate and, to the extent possible, some degree of
standardization across common situations, with an ultimate goal of
reducing marine mammal interactions. It is the responsibility of the
AFSC to facilitate such exchange.

Handling Procedures and Data Collection

Improved standardization of handling procedures were discussed
previously in ``Mitigation.'' In addition to the benefits implementing
these protocols are believed to have on the animals through increased
post-release survival, AFSC believes adopting these protocols for data
collection will also increase the information on which ``serious
injury'' determinations (NMFS, 2012a, 2012b) are based and improve
scientific knowledge about marine mammals that interact with fisheries
research gears and the factors that contribute to these interactions.
AFSC personnel will be provided standard guidance and training
regarding handling of marine mammals, including how to identify
different species, bring an individual aboard a vessel, assess the
level of consciousness, remove fishing gear, return an individual to
water and log activities pertaining to the interaction.
AFSC will record interaction information on their own standardized
forms. To aid in serious injury determinations and comply with the
current NMFS Serious Injury Guidelines (NMFS, 2012a, 2012b),
researchers will also answer a series of supplemental questions on the
details of marine mammal interactions.
Finally, for any marine mammals that are killed during fisheries
research activities, scientists will collect data and samples pursuant
to Appendix D of the AFSC EA, ``Protected Species Mitigation and
Handling Procedures for AFSC Fisheries Research Vessels.''

Reporting

As is normally the case, AFSC will coordinate with the relevant
stranding coordinators for any unusual marine mammal behavior and any
stranding, beached live/dead, or floating marine mammals that are
encountered during field research activities. The AFSC will follow a
phased approach with regard to the cessation of its activities and/or
reporting of such events, as described in the regulatory texts
following this preamble. In addition, Chief Scientists (or cruise
leader, CS) will provide reports to AFSC leadership and to the Office
of Protected Resources (OPR). As a result, when marine mammals interact
with survey gear, whether killed or released alive, a report provided
by the CS will fully describe any observations of the animals, the
context (vessel and conditions), decisions made and rationale for
decisions made in vessel and gear handling. The circumstances of these
events are critical in enabling AFSC and OPR to better evaluate the
conditions under which takes are most likely occur. We believe in the
long term this will allow the avoidance of these types of events in the
future.
The AFSC will submit annual summary reports to OPR including: (1)
Annual line-kilometers surveyed during which the EK60, ME70, ES60, 7111
(or equivalent sources) were predominant (see ``Estimated Take by
Acoustic Harassment'' for further discussion), specific to each region;
(2) summary information regarding use of all longline, gillnet, and
trawl gear, including number of sets, tows, etc., specific to each
research area and gear; (3) accounts of all incidents of marine mammal
interactions, including circumstances of the event and descriptions of
any mitigation procedures implemented or not implemented and why; (4)
summary information related to any disturbance of pinnipeds, including
event-specific total counts of animals present, counts of reactions
according to the three-point scale shown in Table 9, and distance of
closest approach; and (5) a written evaluation of the effectiveness of
AFSC mitigation strategies in reducing the number of marine mammal
interactions with survey gear, including best professional judgment and
suggestions for changes to the mitigation strategies, if any. The
period of reporting will be annually, beginning one year post-issuance
of any LOA, and the report must be submitted not less than ninety days
following the end of a given year. Submission of this information is in
service of an adaptive management framework allowing NMFS to make

[[Page 46815]]

appropriate modifications to mitigation and/or monitoring strategies,
as necessary, during the five-year period of validity for these
regulations.
NMFS has established a formal incidental take reporting system, the
Protected Species Incidental Take (PSIT) database, requiring that
incidental takes of protected species be reported within 48 hours of
the occurrence. The PSIT generates automated messages to NMFS
leadership and other relevant staff, alerting them to the event and to
the fact that updated information describing the circumstances of the
event has been inputted to the database. The PSIT and CS reports
represent not only valuable real-time reporting and information
dissemination tools but also serve as an archive of information that
may be mined in the future to study why takes occur by species, gear,
region, etc.
AFSC will also collect and report all necessary data, to the extent
practicable given the primacy of human safety and the well-being of
captured or entangled marine mammals, to facilitate serious injury (SI)
determinations for marine mammals that are released alive. AFSC will
require that the CS complete data forms and address supplemental
questions, both of which have been developed to aid in SI
determinations. AFSC understands the critical need to provide as much
relevant information as possible about marine mammal interactions to
inform decisions regarding SI determinations. In addition, the AFSC
will perform all necessary reporting to ensure that any incidental M/SI
is incorporated as appropriate into relevant SARs.

Negligible Impact Analysis and Determination

Introduction--NMFS has defined negligible impact as an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival (50 CFR 216.103). A negligible impact finding is based on the
lack of likely adverse effects on annual rates of recruitment or
survival (i.e., population-level effects). An estimate of the number of
takes alone is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' by mortality, serious injury,
and Level A or Level B harassment, we consider other factors, such as
the likely nature of any behavioral responses (e.g., intensity,
duration), the context of any such responses (e.g., critical
reproductive time or location, migration), as well as effects on
habitat, and the likely effectiveness of mitigation. We also assess the
number, intensity, and context of estimated takes by evaluating this
information relative to population status. Consistent with the 1989
preamble for NMFS's implementing regulations (54 FR 40338; September
29, 1989), the impacts from other past and ongoing anthropogenic
activities are incorporated into this analysis via their impacts on the
environmental baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, and specific consideration of take
by M/SI previously authorized for other NMFS research activities).
We note here that the takes from potential gear interactions
enumerated below could result in non-serious injury, but their worse
potential outcome (mortality) is analyzed for the purposes of the
negligible impact determination. We discuss here the connection between
the mechanisms for authorizing incidental take under section 101(a)(5)
for activities, such as AFSC's research activities, and for authorizing
incidental take from commercial fisheries. In 1988, Congress amended
the MMPA's provisions for addressing incidental take of marine mammals
in commercial fishing operations. Congress directed NMFS to develop and
recommend a new long-term regime to govern such incidental taking (see
MMC, 1994). The need to develop a system suited to the unique
circumstances of commercial fishing operations led NMFS to suggest a
new conceptual means and associated regulatory framework. That concept,
Potential Biological Removal (PBR), and a system for developing plans
containing regulatory and voluntary measures to reduce incidental take
for fisheries that exceed PBR were incorporated as sections 117 and 118
in the 1994 amendments to the MMPA.
PBR is defined in the MMPA (16 U.S.C. 1362(20)) as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population, and is a measure to be
considered when evaluating the effects of M/SI on a marine mammal
species or stock. Optimum sustainable population (OSP) is defined by
the MMPA (16 U.S.C. 1362(9)) as the number of animals which will result
in the maximum productivity of the population or the species, keeping
in mind the carrying capacity of the habitat and the health of the
ecosystem of which they form a constituent element. A primary goal of
the MMPA is to ensure that each species or stock of marine mammal is
maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin); the
productivity rate of the stock at a small population size; and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of Nmin incorporates the precision and
variability associated with abundance information and is intended to
provide reasonable assurance that the stock size is equal to or greater
than the estimate (Barlow et al., 1995). In general, the three factors
are developed on a stock-specific basis in consideration of one another
in order to produce conservative PBR values that appropriately account
for both imprecision that may be estimated as well as potential bias
stemming from lack of knowledge (Wade, 1998).
PBR can be used as a consideration of the effects of M/SI on a
marine mammal stock but was applied specifically to work within the
management framework for commercial fishing incidental take. PBR cannot
be applied appropriately outside of the section 118 regulatory
framework for which it was designed without consideration of how it
applies in section 118 and how other statutory management frameworks in
the MMPA differ. PBR was not designed as an absolute threshold limiting
commercial fisheries, but rather as a means to evaluate the relative
impacts of those activities on marine mammal stocks. Even where
commercial fishing is causing M/SI at levels that exceed PBR, the
fishery is not suspended. When M/SI exceeds PBR, NMFS may develop a
take reduction plan, usually with the assistance of a take reduction
team. The take reduction plan will include measures to reduce and/or
minimize the taking of marine mammals by commercial fisheries to a
level below the stock's PBR. That is, where the total annual human-
caused M/SI exceeds PBR, NMFS is not required to halt fishing
activities contributing to total M/SI but rather utilizes the take
reduction process to further mitigate the effects of fishery activities
via additional bycatch

[[Page 46816]]

reduction measures. PBR is not used to grant or deny authorization of
commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent consideration of PBR may be relevant to
considering the impacts of incidental take from activities other than
commercial fisheries, using it as the sole reason to deny incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5) and the use of PBR under
section 118. The standard for authorizing incidental take under section
101(a)(5) continues to be, among other things, whether the total taking
will have a negligible impact on the species or stock. When Congress
amended the MMPA in 1994 to add section 118 for commercial fishing, it
did not alter the standards for authorizing non-commercial fishing
incidental take under section 101(a)(5), acknowledging that negligible
impact under section 101(a)(5) is a separate standard from PBR under
section 118. In fact, in 1994 Congress also amended section
101(a)(5)(E) (a separate provision governing commercial fishing
incidental take for species listed under the Endangered Species Act) to
add compliance with the new section 118 but kept the requirement for a
negligible impact finding, showing that the determination of negligible
impact and application of PBR may share certain features but are
different.
Since the introduction of PBR, NMFS has used the concept almost
entirely within the context of implementing sections 117 and 118 and
other commercial fisheries management-related provisions of the MMPA.
The MMPA requires that PBR be estimated in stock assessment reports and
that it be used in applications related to the management of take
incidental to commercial fisheries (i.e., the take reduction planning
process described in section 118 of the MMPA and the determination of
whether a stock is ``strategic'' (16 U.S.C. 1362(19))), but nothing in
the MMPA requires the application of PBR outside the management of
commercial fisheries interactions with marine mammals.
Nonetheless, NMFS recognizes that as a quantitative metric, PBR may
be useful in certain instances as a consideration when evaluating the
impacts of other human-caused activities on marine mammal stocks.
Outside the commercial fishing context, and in consideration of all
known human-caused mortality, PBR can help inform the potential effects
of M/SI caused by activities authorized under 101(a)(5)(A) on marine
mammal stocks. As noted by NMFS and the USFWS in our implementation
regulations for the 1986 amendments to the MMPA (54 FR 40341, September
29, 1989), the Services consider many factors, when available, in
making a negligible impact determination, including, but not limited
to, the status of the species or stock relative to OSP (if known),
whether the recruitment rate for the species or stock is increasing,
decreasing, stable, or unknown, the size and distribution of the
population, and existing impacts and environmental conditions. To
specifically use PBR, along with other factors, to evaluate the effects
of M/SI, we first calculate a metric for each species or stock that
incorporates information regarding ongoing anthropogenic M/SI into the
PBR value (i.e., PBR minus the total annual anthropogenic mortality/
serious injury estimate), which is called ``residual PBR'' (Wood et
al., 2012). We then consider how the anticipated potential incidental
M/SI from the activities being evaluated compares to residual PBR.
Anticipated or potential M/SI that exceeds residual PBR is considered
to have a higher likelihood of adversely affecting rates of recruitment
or survival, while anticipated M/SI that is equal to or less than
residual PBR has a lower likelihood (both examples given without
consideration of other types of take, which also factor into a
negligible impact determination). In such cases where the anticipated
M/SI is near, at, or above residual PBR, consideration of other
factors, including those outlined above as well as mitigation and other
factors (positive or negative), is especially important to assessing
whether the M/SI will have a negligible impact on the stock. As
described above, PBR is a conservative metric and is not intended to be
used as a solid cap on mortality--accordingly, impacts from M/SI that
exceed residual PBR may still potentially be found to be negligible in
light of other factors that offset concern, especially when robust
mitigation and adaptive management provisions are included.
Alternately, for a species or stock with incidental M/SI less than
10 percent of residual PBR, we consider M/SI from the specified
activities to represent an insignificant incremental increase in
ongoing anthropogenic M/SI that alone (i.e., in the absence of any
other take) cannot affect annual rates of recruitment and survival. In
a prior incidental take rulemaking and in the commercial fishing
context, this threshold is identified as the significance threshold,
but it is more accurately an insignificance threshold outside
commercial fishing because it represents the level at which there is no
need to consider other factors in determining the role of M/SI in
affecting rates of recruitment and survival. Assuming that any
additional incidental take by harassment would not exceed the
negligible impact level, the anticipated M/SI caused by the activities
being evaluated would have a negligible impact on the species or stock.
This 10 percent was identified as a workload simplification
consideration to avoid the need to provide unnecessary additional
information when the conclusion is relatively obvious; but as described
above, values above 10 percent have no particular significance
associated with them until and unless they approach residual PBR.
Our evaluation of the M/SI for each of the species and stocks for
which mortality could occur follows. In addition, all mortality
authorized for some of the same species or stocks over the next several
years pursuant to our final rulemakings for the NMFS Southwest
Fisheries Science Center and the NMFS Northwest Fisheries Science
Center has been incorporated into the residual PBR.
We first consider maximum potential incidental M/SI for each stock
(Table 4) in consideration of NMFS's threshold for identifying
insignificant M/SI take (10 percent of residual PBR (69 FR 43338; July
20, 2004)). By considering the maximum potential incidental M/SI in
relation to PBR and ongoing sources of anthropogenic mortality, we
begin our evaluation of whether the potential incremental addition of
M/SI through AFSC research activities may affect the species' or
stock's annual rates of recruitment or survival. We also consider the
interaction of those mortalities with incidental taking of that species
or stock by harassment pursuant to the specified activity.

Summary of Estimated Incidental Take

Here we provide a summary of the total incidental take
authorization on an annual basis, as well as other information relevant
to the negligible impact analysis. Table 11 shows information relevant
to our negligible impact analysis concerning the total annual taking
that could occur for each stock from NMFS' scientific research
activities when considering incidental take previously authorized for
SWFSC (80 FR 58982; September 30, 2015) and NWFSC (83 FR 36370; July
27, 2018) and AFSC. Scientific research activities conducted by the
SWFSC and/or NWFSC may impact the same populations of marine mammals
expected to be impacted by IPHC survey

[[Page 46817]]

activities occurring off of the U.S. west coast. We authorize take by
M/SI over the five-year period of validity for these regulations as
indicated in Table 11 below. For the purposes of the negligible impact
analysis, we assume that all of these takes could potentially be in the
form of M/SI; PBR is not appropriate for direct assessment of the
significance of harassment.
For some stocks, a range is provided in the ``Total M/SI
Authorization'' columns of Table 11 (below). In these cases, the worst
case potential outcome is used to derive the value presented in the
``Estimated Maximum Annual M/SI'' column (Table 11, below). For
example, we present ranges of 13-18 and 3-8 as the total take
authorization over five years for the eastern Pacific and California
stocks of northern fur seal, respectively. These ranges reflect that,
as part of the overall take authorization for AFSC, a total of five
takes of northern fur seals are expected to occur as a result
specifically of IPHC longline operations. These five takes are
considered as potentially accruing to either stock; therefore, we
assess the consequences of the take authorization for these stocks as
though the maximum could occur to both. The ten total takes expected to
potentially occur as a result of SWFSC and/or NWFSC survey operations
could also occur to individuals from either stock. Similarly, we assume
that IPHC survey operations specifically could result in incidental
take of up to five harbor seals over the five years, and that these
takes could occur for any stock of harbor seal (but that no more than
one take would be expected from any given stock). Therefore, although
only five takes are expected from IPHC activities, we assume that one
take accrues to each of the 17 harbor seal stocks that may overlap with
the IPHC surveys. For the NWFSC, we assumed that nine total takes of
harbor seal could occur over five years, and that these takes could
occur to either the California or Oregon/Washington coast stocks. Over
five years, six total takes were expected to result from NWFSC/SWFSC
survey operations within Washington inland waters--potentially
occurring to any of the three stocks of harbor seals occurring in those
waters. The value presented for ``Estimated Maximum Annual M/SI'' for
each stock reflects these considerations. Similar considerations result
in the ranges given for Steller sea lions (Table 11). This stock-
specific accounting does not change our expectations regarding the
combined total number of takes that would actually occur for each
stock, but informs our stock-specific negligible impact analysis.
We previously authorized take of marine mammals incidental to
fisheries research operations conducted by the SWFSC (see 80 FR 58982
and 80 FR 68512), and NWFSC (see 81 FR 38516 and 83 FR 36370). This
take would occur to some of the same stocks for which we authorize take
incidental to AFSC fisheries research operations. Therefore, in order
to evaluate the likely impact of the take by M/SI in this rule, we
consider not only other ongoing sources of human-caused mortality but
the potential mortality authorized for SWFSC/NWFSC. As used in this
document, other ongoing sources of human-caused (anthropogenic)
mortality refers to estimates of realized or actual annual mortality
reported in the SARs and does not include authorized or unknown
mortality. Below, we consider the total taking by M/SI for AFSC and
previously authorized for SWFSC/NWFSC together to produce a maximum
annual M/SI take level (including take of unidentified marine mammals
that could accrue to any relevant stock) and compare that value to the
stock's PBR value, considering ongoing sources of anthropogenic
mortality (as described in footnote 4 of Table 11 and in the following
discussion). PBR and annual M/SI values considered in Table 11 reflect
the most recent information available (i.e., draft 2018 SARs).

Table 11--Summary Information Related to AFSC Annual Take Authorization, 2019-24
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual
Level B Percent of AFSC/IPHC SWFSC/NWFSC Estimated PBR minus
Species \1\ Stock harassment estimated total M/SI total M/SI maximum annual M/SI Stock
authorization population authorization, authorization annual M/ (%) \5\ trend \6\
\2\ abundance 2019-24 \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale...... ENP............... 2 6.5............ 0 0 0 n/a ?
Bowhead whale.................. Western Arctic.... 42 0.2............ 0 0 0 n/a [uarr]
Gray whale..................... ENP............... 5,579 21.7........... 0 0 0 n/a [rarr]
Humpback whale................. CNP............... 161 1.6............ 0 0 0 n/a [uarr]
WNP............... 6 0.5............ 0 0 0 n/a [uarr]
Minke whale.................... Alaska............ 8 0.2 \8\........ 0 0 0 n/a ?
Sei whale...................... ENP............... 2 0.4............ 0 0 0 n/a [uarr]
Fin whale...................... Northeast Pacific. 40 3.9 \8\........ 0 0 0 n/a [uarr]
Blue whale..................... ENP............... 1 0.1............ 0 0 0 n/a [rarr]
Sperm whale.................... North Pacific..... 22 Unknown........ 2 0 0.4 ? ?
Cuvier's beaked whale.......... Alaska............ 2 Unknown........ 0 0 0 n/a ?
Baird's beaked whale........... Alaska............ 8 Unknown........ 0 0 0 n/a ?
Stejneger's beaked whale....... Alaska............ 15 Unknown........ 0 0 0 n/a ?
Beluga whale................... Beaufort Sea...... 3 0.0............ 1 0 0.2 ? [uarr] or
[rarr]
Eastern Chukchi 3 0.1............ 1 0 0.2 ? ?
Sea.
Eastern Bering Sea 939 13.4........... 0 0 0 n/a ?
Bristol Bay....... 0 n/a............ 0 0 0 n/a [uarr]
Cook Inlet........ 3 0.9............ 0 0 0 n/a [darr]
Bottlenose dolphin............. CA/OR/WA Offshore. 0 n/a............ 1 11 2.8 9.4 (29.8) ?
Common dolphin................. CA/OR/WA.......... 0 n/a............ 1 15 3.6 8,353 (0.0) [uarr]
Pacific white-sided dolphin.... NP................ 54 0.2............ 6 0 1.6 ? ?
Risso's dolphin................ CA/OR/WA.......... 0 n/a............ 1 20 4.6 42.3 (10.9) ?
Killer whale................... ENP Offshore...... 67 22.3........... 0 0 n/a n/a ?
West Coast 13 5.3............ 0 0 n/a n/a [uarr]
Transient.
AT1 Transient..... 2 28.6........... 0 0 n/a n/a [darr]
ENP Gulf of 14 2.4............ 0 0 n/a n/a [rarr]
Alaska, Aleutian
Islands, and
Bering Sea
Transient.
ENP Northern 6 2.3............ 0 0 n/a n/a [uarr]
Resident.
ENP Alaska 24 1.0............ 2 0 0.4 23 (1.7) [uarr]
Resident.
Short-finned pilot whale....... CA/OR/WA.......... 0 n/a............ 1 2 0.6 3.3 (18.2) ?
Harbor porpoise................ Southeast Alaska.. 358 12.4 \8\....... 1 0 0.2 ? [darr] or
[rarr]
Gulf of Alaska.... 650 2.1............ 2 0 0.8 ? ?

[[Page 46818]]

Bering Sea........ 1,746 3.6............ 1 0 0.4 ? ?
Dall's porpoise................ CA/OR/WA.......... 0 n/a............ 1 8 2.2 171.7 (1.3) ?
Alaska............ 5,343 6.4............ 14 0 3.4 ? ?
Northern fur seal.............. Pribilof Islands/ 1,576 0.3............ 13-18 10 7.0 10,838 (0.1) [darr]
Eastern Pacific.
California........ 143 1.0............ 3-8 .............. 4.6 449.2 (1.0) [uarr]
California sea lion............ United States..... 0 n/a............ 1 35 8.0 13,692 (0.1) [uarr]
Steller sea lion............... Eastern U.S....... 914 2.2............ 7-12 19 7.4 2,390 (0.3) [uarr]
Western U.S....... 3,526 6.5............ 13-18 0 4.6 74 (6.2) \7\ ?
Bearded seal................... Alaska (Beringia 1,727 0.6............ 2 0 0.8 7,653 (0.0) ?
DPS).
Harbor seal.................... California........ 0 n/a............ 1 5-14 3.6 1,598 (0.2) [rarr]
OR/WA Coast....... 0 n/a............ 1 2-11 2.2 ? [rarr]
Washington Inland 0 n/a............ 1 6 1.6 ? [rarr]
Waters.
Clarence Strait... 242 0.8............ 2 0 0.8 1,181 (0.1) [uarr]
Dixon/Cape 153 0.8............ 2 0 0.8 634 (0.1) [uarr]
Decision.
Sitka/Chatham 965 6.5............ 3 0 1.0 483 (0.2) [uarr]
Strait.
Lynn Canal/ 109 1.2............ 2 0 0.8 105 (0.8) [darr]
Stephens Passage.
Glacier Bay/Icy 69 1.0............ 2 0 0.8 65 (1.2) [uarr]
Strait.
Cook Inlet/ 2,622 9.6............ 2 0 0.8 536 (0.1) [uarr]
Shelikof Strait.
Prince William 3,194 10.7........... 3 0 1.0 559 (0.2) [darr]
Sound.
South Kodiak...... 3,809 19.8........... 2 0 0.8 186 (0.4) [darr]
North Kodiak...... 906 10.9........... 2 0 0.8 261 (0.3) [uarr]
Bristol Bay....... 187 0.6............ 2 0 0.8 1,040 (0.1) [uarr]
Pribilof Islands.. 29 12.5........... 2 0 0.8 7 (11.4) [rarr]
Aleutian Islands.. 301 4.7............ 2 0 0.8 83 (1.0) [uarr]
Spotted seal................... Alaska............ 2,106 0.5............ 3 0 1.2 12,368 (0.0) ?
Ringed seal.................... Alaska............ 2,066 1.2 \8\........ 4 0 1.6 ? ?
Ribbon seal.................... Alaska............ 1,404 0.8............ 2 0 0.8 9,781.1 ?
(0.0)
Northern elephant seal......... California 52 0.0............ 1 10 2.6 4,873.2 [uarr]
Breeding. (0.1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Please see Tables 5, 6, 7, 8, and 10 and preceding text for details.
\1\ For some species with multiple stocks, indicated level of take could occur to individuals from any stock (as indicated in table). For some stocks, a
range is presented.
\2\ Level B harassment totals include estimated take due to acoustic harassment and, for harbor seals and Steller sea lions, estimated take due to
physical disturbance. Active acoustic devices are not used for data acquisition by IPHC; therefore, no takes by acoustic harassment are expected for
stocks that occur entirely outside of Alaskan waters.
\3\ As explained earlier in this document, gear interaction could result in mortality, serious injury, or Level A harassment. Because we do not have
sufficient information to enable us to parse out these outcomes, we present such take as a pool. For purposes of this negligible impact analysis we
assume the worst case scenario (that all such takes incidental to research activities result in mortality).
\4\ This column represents the total number of incidents of M/SI that could potentially accrue to the specified species or stock as a result of NMFS's
fisheries research activities and is the number carried forward for evaluation in the negligible impact analysis (later in this document). To reach
this total, we add one to the total for each pinniped that may be captured in trawl gear in each of the three AFSC research areas; one to the total
for each pinniped that may be captured in AFSC longline gear in the GOARA and BSAIRA; and one to the total for each pinniped that may be captured in
IPHC longline gear. We also add one to the total of each small cetacean that may be captured in trawl gear in the GOARA and BSAIRA and one to the
total of each small cetacean that may be captured in gillnet gear (GOARA only). This represents the potential that the take of an unidentified
pinniped or small cetacean could accrue to any given stock captured in that gear in that area. The take authorization is formulated as a five-year
total; the annual average is used only for purposes of negligible impact analysis. We recognize that portions of an animal may not be taken in a given
year.
\5\ This value represents the calculated PBR less the average annual estimate of ongoing anthropogenic mortalities (i.e., total annual human-caused M/
SI, which is presented in the SARs) (see Table 1). In parentheses, we provide the estimated maximum annual M/SI expressed as a percentage of this
value. For some stocks, a minimum population abundance value (and therefore PBR) is unavailable. In these cases, the proportion of estimated
population abundance represented by the Level B harassment total and/or the proportion of residual PBR represented by the estimated maximum annual M/
SI cannot be calculated.
\6\ See relevant SARs for more information regarding stock status and trends. Interannual increases may not be interpreted as evidence of a trend. Based
on the most recent abundance estimates, harbor seal stocks may have reached carrying capacity and appear stable. A time series of stock-specific
abundance estimates for harbor porpoise shows either increasing or stable estimates, but it is not statistically valid to infer a trend.
\7\ For western Steller sea lions, it is not appropriate to identify a single trend. Using data collected through 2017, there is strong evidence that
non-pup and pup counts increased at ~2 percent per year between 2002 and 2017. However, there are strong regional differences across the range in
Alaska, with positive trends east of Samalga Pass (~170[deg] W) in the Gulf of Alaska and eastern Bering Sea and negative trends to the west in the
Aleutian Islands. For more information, please see the draft 2018 SAR.
\8\ No official abundance estimate is provided for these stocks; however, we use the best available information regarding population abundance for
comparison with the total annual Level B harassment authorization. For the minke whale, surveys covering portions of the stock range provide a partial
abundance estimate of 2,020 (CV = 0.73) + 1,233 (CV = 0.34) whales. For the fin whale, we use the minimum abundance estimate provided for a portion of
the stock range (1,036 whales). Surveys in 2010-2012 provide an abundance estimate of 398 (CV = 0.12) + 577 (CV = 0.14) harbor porpoises in southeast
Alaska. However, the resulting total of 975 is not corrected for observer perception bias and porpoise availability at the surface, which is
particularly influential for estimates of porpoise abundance. Therefore, we apply a previously estimated correction factor of 2.96 (Hobbs and Waite,
2010) to this estimate for a provisional abundance estimate of 2,886. For the ringed seal, a partial abundance estimate (that does not account for
availability bias) of 170,000 seals is given. For more information, please see the relevant SARs.

Analysis--The majority of stocks that may potentially be taken by
M/SI (25 of 41) fall below the insignificance threshold (i.e., 10
percent of residual PBR), while an additional 11 stocks do not have
current PBR values and therefore are evaluated using other factors. We
first consider stocks expected to be affected only by behavioral
harassment and those stocks that fall below the insignificance
threshold. Next, we consider those stocks above the insignificance
threshold (i.e., the offshore stock of bottlenose dolphin, Risso's
dolphin, short-finned pilot whale, and the Pribilof Islands stock of
harbor seal) and those without PBR values (harbor seal stocks along the
Oregon and Washington coasts and in Washington inland waters; two
stocks of beluga whale; three stocks of harbor porpoise; sperm whale;
Pacific white-sided dolphin; the Alaska stock of Dall's porpoise; and
the ringed seal).
As described in greater depth previously (see ``Acoustic Effects''
in our Notice of Proposed Rulemaking (August 1, 2018; 83 FR 37638)), we
do not believe that AFSC use of active acoustic sources has the likely
potential to cause any effect exceeding Level B harassment of marine
mammals. We

[[Page 46819]]

have produced what we believe to be precautionary estimates of
potential incidents of Level B harassment. There is a general lack of
information related to the specific way that these acoustic signals,
which are generally highly directional and transient, interact with the
physical environment and to a meaningful understanding of marine mammal
perception of these signals and occurrence in the areas where AFSC
operates. The procedure for producing these estimates, described in
detail in our Notice of Proposed Rulemaking (August 1, 2018; 83 FR
37638; ``Estimated Take Due to Acoustic Harassment''), represents
NMFS's best effort towards balancing the need to quantify the potential
for occurrence of Level B harassment with this general lack of
information. The sources considered here have moderate to high output
frequencies, generally short ping durations, and are typically focused
(highly directional) to serve their intended purpose of mapping
specific objects, depths, or environmental features. In addition, some
of these sources can be operated in different output modes (e.g.,
energy can be distributed among multiple output beams) that may lessen
the likelihood of perception by and potential impacts on marine mammals
in comparison with the quantitative estimates that guide our estimated
take numbers. We also produced estimates of incidents of potential
Level B harassment due to disturbance of hauled-out pinnipeds that may
result from the physical presence of researchers; these estimates are
combined with the estimates of Level B harassment that may result from
use of active acoustic devices.
Here, we consider authorized Level B harassment less than five
percent of population abundance to be de minimis, while authorized
Level B harassment between 5[hyphen]15 percent is low. A moderate
amount of authorized taking by Level B harassment would be from 15-25
percent, and high above 25 percent. Of the 49 stocks that may be
subject to Level B harassment, the level of taking would represent a de
minimis impact for 31 stocks and a low impact for an additional ten
stocks. We do not consider these impacts further for these 41 stocks.
The level of taking by Level B harassment would represent a moderate
impact on three additional stocks, the South Kodiak stock of harbor
seals, the gray whale, and the offshore stock of killer whales. No
taking by M/SI is authorized for the latter two stocks, whereas M/SI is
authorized for the harbor seal stock. Therefore, we consider these
potential impacts in conjunction with the level of taking by M/SI. The
annual taking by M/SI projected for this stock equates to less than one
percent of residual PBR; therefore we do not consider this stock
further. The total taking by Level B harassment represents a high level
of impact for one stock (AT1 stock of killer whale). We discuss this in
further detail below. For an additional four stocks (sperm whale and
Alaska stocks of three beaked whale species), there is no abundance
estimate upon which to base a comparison. However, we note that the
anticipated number of incidents of take by Level B harassment are very
low (2-22 for these four stocks) and likely represent a de minimis
impact on these stocks.
As described previously, there is some minimal potential for
temporary effects to hearing for certain marine mammals, but most
effects would likely be limited to temporary behavioral disturbance.
Effects on individuals that are taken by Level B harassment will likely
be limited to reactions such as increased swimming speeds, increased
surfacing time, or decreased foraging (if such activity were
occurring), reactions that are considered to be of low severity (e.g.,
Ellison et al., 2012). Individuals may move away from the source if
disturbed; but, because the source is itself moving and because of the
directional nature of the sources considered here, there is unlikely to
be even temporary displacement from areas of significance and any
disturbance would be of short duration. Although there is no
information on which to base any distinction between incidents of
harassment and individuals harassed, the same factors, in conjunction
with the fact that AFSC survey effort is widely dispersed in space and
time, indicate that repeated exposures of the same individuals would be
very unlikely. For these reasons, we do not consider the level of take
by acoustic disturbance to represent a significant additional
population stressor when considered in context with the level of take
by M/SI for any species, including those for which no abundance
estimate is available.
There are no additional impacts other than Level B harassment
expected for the AT1 stock of killer whales. It should be noted that
the AT1 stock of transient killer whales has a critically low
population abundance of seven whales. Although the estimate of take by
Level B harassment is at 29 percent, this represents only two estimated
incidents of temporary and insignificant behavioral disruption, which
would not be expected to affect annual rates of recruitment or survival
for the stock. We do not discuss this stock further.
Similarly, disturbance of pinnipeds on haul-outs by researchers
(expected for harbor seals and Steller sea lions in the GOARA and
BSAIRA) are expected to be infrequent and cause only a temporary
disturbance on the order of minutes. As noted previously, monitoring
results from other activities involving the disturbance of pinnipeds
and relevant studies of pinniped populations that experience more
regular vessel disturbance indicate that individually significant or
population level impacts are unlikely to occur. When considering the
individual animals likely affected by this disturbance, only a small
fraction of the estimated population abundance of the affected stocks
would be expected to experience the disturbance.
For Risso's dolphin, short-finned pilot whale, and the offshore
stock of bottlenose dolphin, maximum total potential M/SI due to NMFS'
fisheries research activity (SWFSC, NWFSC, and AFSC combined) is
approximately 11, 18, and 30 percent of residual PBR, respectively. For
example, PBR for Risso's dolphin is currently set at 46 and the annual
average of known ongoing anthropogenic M/SI is 3.7, yielding a residual
PBR value of 42.3. The maximum combined annual average M/SI incidental
to NMFS fisheries research activity is 4.6, or 10.9 percent of residual
PBR. The only known source of other anthropogenic mortality for these
species is in commercial fisheries. For the Risso's dolphin and
offshore stock of bottlenose dolphin, such take is considered to be
insignificant and approaching zero mortality and serious injury. This
is not the case for the short-finned pilot whale; however, the annual
take from fisheries (1.2) and from NMFS's fisheries research (0.6) are
both very low. There are no other factors that would lead us to believe
that take by M/SI of 18 percent of residual PBR would be problematic
for this species. Total potential M/SI due to NMFS' fisheries research
activity is approximately 11 percent of residual PBR for the Pribilof
Islands stock of harbor seals. However, there are no other known
sources of anthropogenic M/SI for this stock or other known significant
stressors; therefore, there is no indication that the take by M/SI of
11 percent of residual PBR would be problematic for this stock.
PBR is unknown for harbor seals on the Oregon and Washington coasts
and in Washington inland waters (comprised of the Hood Canal, southern
Puget Sound, and Washington northern

[[Page 46820]]

inland waters stocks). The Hood Canal, southern Puget Sound, and
Washington northern inland waters stocks were formerly a single inland
waters stock. Both the Oregon/Washington coast and Washington inland
waters stocks of harbor seal were considered to be stable following the
most recent abundance estimates (in 1999, stock abundances were
estimated at 24,732 and 13,692, respectively). However, a Washington
Department of Fish and Wildlife expert (S. Jeffries) stated an
unofficial abundance of 32,000 harbor seals in Washington (Mapes,
2013). Therefore, it is reasonable to assume that at worst, the stocks
have not declined since the last abundance estimates. Ongoing
anthropogenic mortality is estimated at 10.6 harbor seals per year for
the coastal stock and 13.4 for inland waters seals; therefore, we
reasonably assume that the maximum potential annual M/SI incidental to
NMFS' fisheries research activities (2.2 and 1.6, respectively) is a
small fraction of any sustainable take level that might be calculated
for either stock.
As noted above, PBR is also undetermined for the sperm whale,
Pacific white-sided dolphin, two stocks of beluga whale, three stocks
of harbor porpoise, Alaska stock of Dall's porpoise, and the ringed
seal. We follow a similar approach as for harbor seals (see above) in
evaluating the significance of the proposed M/SI by describing
available information regarding population abundance and other sources
of anthropogenic M/SI.
Rice (1989) estimated that there were 930,000 sperm whales
in the North Pacific following the conclusion of commercial whaling.
However, this estimate included areas beyond the range of the U.S.
North Pacific stock of sperm whales. Kato and Miyashita (1998) produced
an estimate of 102,112 (CV = 0.155) sperm whales in the western North
Pacific. However, this estimate is considered to be positively biased,
and includes whales outside of Alaskan waters. Commercial fishing is
the only other source of ongoing anthropogenic M/SI, which is estimated
to be 3.7 whales per year. When considered in conjunction with the
maximum total annual M/SI anticipated as a result of NMFS fisheries
research activities (0.4), we expect that the resulting total annual M/
SI (4.1) is a small fraction of any sustainable take level that might
be calculated for the stock.
Historically, the minimum population estimate for the
Central North Pacific stock of Pacific white-sided dolphin was 26,880,
based on the sum of abundance estimates for four separate survey blocks
north of 45[deg]N from surveys conducted during 1987-1990, reported in
Buckland et al. (1993). This was considered a minimum estimate because
the abundance of animals in a fifth block, which straddled the boundary
of the two stocks for this species, was not included in the estimate
for the North Pacific stock. In addition, much of the potential habitat
for this stock was not surveyed between 1987 and 1990 (Muto et al.,
2018). Using this minimum abundance estimate in the PBR equation,
assuming the default 4 percent productivity rate and a recovery factor
of 0.5 (as recommended for stocks of unknown status), produces a PBR
value of 268.8. There are no other sources of anthropogenic M/SI for
this stock. The maximum total annual M/SI anticipated as a result of
NMFS fisheries research activities (1.6) would represent 0.6 percent of
residual PBR.
The historical abundance estimates available in the SARs
for the Beaufort Sea and eastern Chukchi stocks of beluga whale allow
for calculation of residual PBR values of 510 and 177, respectively.
The authorized takes by M/SI for these two stocks are therefore less
than 0.1 percent and 0.1 percent, respectively, of the residual PBR
values.
For the Alaska stock of Dall's porpoise, no current
estimate of minimum population abundance is available. However, an
abundance estimate of 83,400 was estimated on the basis of data
collected form 1987-1991 (Hobbs and Lerczak, 1993). Using this
population estimate and its associated CV of 0.097, the minimum
abundance would be 76,874. Using this estimate with the default
productivity rate and the recovery factor for stocks expected to be
within the OSP level (Buckland et al., 1993), a PBR value of 1,537.5
may be calculated. Accounting for ongoing M/SI due to commercial
fisheries, the maximum total annual M/SI anticipated as a result of
NMFS fisheries research activities (3.4) would represent 0.2 percent of
residual PBR.
For the Bering Sea stock of harbor porpoise, a minimum
abundance estimate of 40,039 was calculated by Hobbs and Waite (2010)
on the basis of a partial abundance estimate, derived from 1999 aerial
surveys of Bristol Bay. Although this estimate is formally considered
outdated for use in calculating PBR values, we use it here in the same
way as the Pacific white-sided dolphin and Dall's porpoise, addressed
above. As for the Pacific white-sided dolphin, we use the default
productivity rate and recovery factor for stocks of unknown status to
calculate a PBR value of 400.4. Accounting for minimal fisheries
mortality, the maximum total annual M/SI anticipated as a result of
NMFS fisheries research activities (0.4) would represent 0.1 percent of
residual PBR.
For the Gulf of Alaska stock of harbor porpoise, a minimum
abundance estimate of 25,987 was calculated by Hobbs and Waite (2010)
on the basis of an abundance estimate derived from 1998 aerial surveys
of the western Gulf of Alaska. Using the default productivity rate and
recovery factor for stocks of unknown status, we calculate a nominal
PBR value of 259.9. Accounting for relatively significant ongoing
fisheries mortality, the maximum total annual M/SI anticipated as a
result of NMFS fisheries research activities (0.8) would represent 0.4
percent of residual PBR.
A negatively biased minimum abundance estimate of 896 was
calculated for the southeast Alaska stock of harbor porpoise on the
basis of 2010-2012 aerial surveys (Muto et al., 2018). The estimate is
negatively biased because it does not account for observer perception
bias and porpoise availability at the surface. However, use of a widely
accepted correction factor (2.96) provides a minimum abundance estimate
of 2,652 and a corresponding PBR value of 26.5. This PBR value is less
than estimated annual ongoing mortality due to commercial fisheries
(34). However, the maximum total annual M/SI anticipated as a result of
NMFS fisheries research activities (0.2) represents a minimum potential
take of one animal over the 5-year period and would represent an
insignificant incremental addition to the total annual M/SI (0.6
percent).
Although NMFS does not provide a formal PBR value for the
ringed seal, Muto et al. (2018) provide a minimum abundance estimate of
170,000 seals in the U.S. sector of the Bering Sea. This is not
considered a reliable estimate for the stock because it does not
account for seals in the Chukchi and Beaufort Seas. However, as this is
a conservative minimum abundance estimate, we use the corresponding PBR
value of 5,100 given by Muto et al. (2018). Accounting for minimal
ongoing M/SI due to commercial fisheries, as well as ongoing
subsistence harvest of ringed seals, the maximum total annual M/SI
anticipated as a result of NMFS fisheries research activities (1.6)
would represent 0.04 percent of residual PBR.
In summary, our negligible impact analysis is founded on the
following factors: (1) The possibility of injury, serious injury, or
mortality from the use of active acoustic devices may reasonably be
considered discountable; (2) the anticipated incidents of Level B

[[Page 46821]]

harassment from the use of active acoustic devices and physical
disturbance of pinnipeds consist of, at worst, temporary and relatively
minor modifications in behavior; (3) the predicted number of incidents
of potential mortality are at insignificant levels for a majority of
affected stocks; (4) consideration of additional factors for Risso's
dolphin, short-finned pilot whale, the offshore stock of bottlenose
dolphin, and the Pribilof Islands stock of harbor seal do not reveal
cause for concern; (5) total maximum potential M/SI incidental to NMFS
fisheries research activity for southeast Alaska harbor porpoise,
considered in conjunction with other sources of ongoing mortality,
presents only a minimal incremental additional to total M/SI; (6)
available information regarding stocks for which no current PBR
estimate is available indicates that total maximum potential M/SI is
sustainable; and (7) the presumed efficacy of the planned mitigation
measures in reducing the effects of the specified activity to the level
of least practicable adverse impact. In combination, we believe that
these factors demonstrate that the specified activity will have only
short-term effects on individuals (resulting from Level B harassment)
and that the total level of taking will not impact rates of recruitment
or survival sufficiently to result in population-level impacts.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, we find that the total marine mammal take from the
proposed activities will have a negligible impact on the affected
marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(A) of the MMPA for specified
activities. The MMPA does not define small numbers and so, in practice,
where estimated numbers are available, NMFS compares the number of
individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals.
Additionally, other qualitative factors may be considered in the
analysis, such as the temporal or spatial scale of the activities.
Please see Table 11 for information relating to this small numbers
analysis. The total amount of taking to be authorized is less than five
percent for a majority of stocks, and the total amount of taking to be
authorized is less than one-third of the stock abundance for all
stocks.
Based on the analysis contained herein of the planned activity
(including the required mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence
Uses

In order to issue an LOA, NMFS must find that the specified
activity will not have an ``unmitigable adverse impact'' on the
subsistence uses of the affected marine mammal species or stocks by
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50
CFR 216.103 as an impact resulting from the specified activity that:
(1) Is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by:
(i) Causing the marine mammals to abandon or avoid hunting areas;
(ii) Directly displacing subsistence users; or
(iii) Placing physical barriers between the marine mammals and the
subsistence hunters; and
(2) cannot be sufficiently mitigated by other measures to increase
the availability of marine mammals to allow subsistence needs to be
met.
As described in this preamble, the AFSC requested authorization of
take incidental to fisheries research activities within Alaskan waters.
The planned activities have the potential to result in M/SI of marine
mammals as a result of incidental interaction with research gear, and
have the potential to result in incidental Level B harassment of marine
mammals as a result of the use of active acoustic devices or because of
the physical presence of researchers at locations where pinnipeds may
be hauled out. These activities also have the potential to result in
impacts on the availability of marine mammals for subsistence uses. The
AFSC is aware of this potential and is committed to implementing
actions to avoid or to minimize any such effects to Alaska Native
subsistence communities. The AFSC addresses the potential for their
research activities to impact subsistence uses on the following
factors:

Actions That May Cause Marine Mammals To Abandon or Avoid Hunting Areas

Some AFSC fisheries research efforts use high-frequency mapping and
fish-finding sonars to assess abundance and distribution of target
stocks of fish. The high frequency transient sound sources operated by
the AFSC are used for a wide variety of environmental and remote-object
sensing in the marine environment. These acoustic sources, which are
present on most AFSC fishery research vessels, include a variety of
single, dual, and multi-beam echosounders, sources used to determine
the orientation of trawl nets, and several current profilers. Some of
these acoustic sources are likely to be audible to some marine mammal
species. Among the marine mammals, most of these sources are unlikely
to be audible to whales and most pinnipeds, whereas they may be
detected by odontocete cetaceans (and particularly high frequency
specialists such as harbor porpoise). There is relatively little direct
information about behavioral responses of marine mammals, including the
odontocete cetaceans to these devices, but the responses that have been
measured in a variety of species to audible sounds suggest that the
most likely behavioral responses (if any) would be localized short-term
avoidance behavior (see ``Potential Effects of Specified Activities on
Marine Mammals and their Habitat'' in our Notice of Proposed Rulemaking
(August 1, 2018; 83 FR 37638)). As a general conclusion, while some of
the active acoustic sources used during AFSC fisheries research surveys
are likely to be detected by some marine species (particularly phocid
pinnipeds and odontocete cetaceans), the sound sources with potential
for disturbance would be temporary and transient in any particular
location as the research vessels move through an area. Any changes in
marine mammal behavior in response to the sound sources or physical
presence of the research vessel would likely involve temporary
avoidance behavior in the vicinity of the research vessel and would
return to normal after the vessel passed. Given the small number of
research vessels involved and their infrequent and inconsistent
presence in any given area from day to day, it is unlikely that the
activity would cause animals to avoid any particular area.
Most AFSC fisheries research activities occur well away from land
and, in cases where they do approach land, include mitigation measures
to minimize the risk of disturbing

[[Page 46822]]

pinnipeds hauled out on land. Any incidental disturbance of pinnipeds
on haul-outs would likely be infrequent and result in temporary or
short term changes in behavior. This sporadic and temporary type of
disturbance is not likely to result in a change in use or abandonment
of a known haul-out.
AFSC fisheries research activities generally are highly transient
and short term (e.g., several hours to a day in any one location) in
duration and take place well out to sea, far from coastal or ice pack
subsistence hunting activities. It is possible, albeit unlikely, for
these fisheries research sound sources to interact with migratory
species hunted for subsistence such that there could be short term
alterations in migratory pathways. However, as described in the AFSC
Communication Plan (Appendix B of AFSC's application), the AFSC will
work with subsistence users to identify important areas for marine
mammals and subsistence hunters early in the planning process as well
as in real time to identify the potential for overlap between migratory
pathways, key hunting regions and seasons, and proposed fisheries
research. This communication should lead to avoidance of any issues of
displacement of marine mammals and their prey.

Activities That May Directly Displace Subsistence Users

AFSC fisheries research primarily utilizes ocean-going ships
generally suited for offshore work. These vessels are not designed to
work in or near sea ice where much of the subsistence harvest of
pinnipeds occurs; thus research activities are most likely to occur
outside of periods when this type of hunting occurs. Due to the desire
to avoid disturbing pinnipeds hauled out on land, these ships largely
avoid nearshore routes that might otherwise put them in the path of
seal hunters.
Bowhead whale hunts may occur near sea ice in the spring or in open
water in the fall. AFSC fisheries research is only conducted during the
open water season in the Arctic so there is no risk of potential
interference with subsistence hunts in the spring. However, AFSC
fisheries research vessels may be present in whale hunting areas in the
fall and could potentially interfere with subsistence activities. The
communications plan is designed to minimize the risk of any such
interference by advance planning and communication between AFSC
scientists and subsistence hunting organizations (e.g., Alaska Eskimo
Whaling Commission) and real-time communication between AFSC research
vessels as they approach subsistence areas and nearby coastal community
contacts. The AFSC is committed to alter its research plans to address
any concerns about potential interference and to avoid any such
interference in the field.
AFSC fisheries research vessels make port calls in established
harbors and ports, thus reducing the chances for interaction with the
transit of hunters to and from coastal villages to nearby hunting
regions. As described in the Communication Plan provided as Appendix B
of AFSC's application, in those rare cases where a research vessel may
need to anchor offshore from a subsistence community, AFSC personnel
will, within the limits of maritime safety, direct the ship to a
predetermined location in coordination with the local subsistence
community so as to avoid interfering with those activities.

Activities That May Place Physical Barriers (Vessels and Gear) Between
the Marine Mammals and the Subsistence Hunters

The AFSC uses a variety of towed nets and sampling gear to conduct
its fisheries and ecosystem research. However, current operational
guidelines designed to reduce incidental catch of marine mammals
include measures that direct activities away from marine mammals near
the research vessel (move-on rule). These measures will reduce the
possibility for placing any barriers between subsistence hunters and
their marine mammal prey. As outlined in the Communication Plan, AFSC
will not deploy such research gear when subsistence hunters have been
visually observed in the area.
AFSC fisheries research will also strive to avoid working in any
areas when migrating species are present in the immediate vicinity. Per
the Communication Plan, the AFSC will coordinate both in advance and in
real time with known marine mammal hunting communities within the
immediate vicinity of research to avoid any interactions between
hunting activity and fisheries research vessels or gear.
We provided AFSC's draft Communication Plan (Appendix B of their
application) to the public and invited comment on the document. No
comments were received in relation to the Plan; therefore, we find that
the plan is appropriate for minimizing the potential for impacts to
subsistence uses of marine mammals. The AFSC is committed to conducting
its activities in ways that do not affect the availability of marine
mammals to subsistence hunters. The AFSC will implement standard
operational procedures and mitigation measures to minimize direct
impacts on marine mammals and will work with Alaska Native
organizations and coastal communities to develop effective
communication protocols to minimize the risk of potential interference
with subsistence activities. The AFSC will thus work to ensure that its
research activities do not negatively impact the availability of marine
mammals to Alaska Native subsistence users.
Based on the description of the specified activity, the measures
described to minimize adverse effects on the availability of marine
mammals for subsistence purposes, and the required mitigation and
monitoring measures, we have determined that there will not be an
unmitigable adverse impact on subsistence uses from AFSC's activities.

Adaptive Management

The regulations governing the take of marine mammals incidental to
AFSC fisheries research survey operations contain an adaptive
management component. The inclusion of an adaptive management component
will be both valuable and necessary within the context of five-year
regulations for activities that have been associated with marine mammal
mortality.
The reporting requirements associated with this rule are designed
to provide OPR with monitoring data from the previous year to allow
consideration of whether any changes are appropriate. OPR and the AFSC
will meet annually to discuss the monitoring reports and current
science and whether mitigation or monitoring modifications are
appropriate. The use of adaptive management allows OPR to consider new
information from different sources to determine (with input from the
AFSC regarding practicability) on an annual or biennial basis if
mitigation or monitoring measures should be modified (including
additions or deletions). Mitigation measures could be modified if new
data suggests that such modifications would have a reasonable
likelihood of reducing adverse effects to marine mammals and if the
measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or

[[Page 46823]]

number not authorized by these regulations or subsequent LOAs.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment. Accordingly, NMFS prepared an Environmental Assessment
(EA; Programmatic Environmental Assessment for Fisheries and Ecosystem
Research Conducted and Funded by the Alaska Fisheries Science Center)
to consider the environmental impacts associated with the AFSC's
proposed activities as well as the issuance of the regulations and
subsequent incidental take authorization. We made the EA available to
the public for review and comment, in relation to its suitability for
use by OPR as an assessment of the impacts to the human environment of
issuance of regulations and subsequent LOAs to AFSC. OPR subsequently
signed a Finding of No Significant Impact (FONSI). The final PEA is
available on request (see FOR FURTHER INFORMATION CONTACT) and the
FONSI is posted online at: www.fisheries.noaa.gov/action/incidental-take-authorization-noaa-fisheries-afsc-fisheries-and-ecosystem-research.

Endangered Species Act (ESA)

There are multiple marine mammal species listed under the ESA with
confirmed or possible occurrence in the specified geographical regions
(see Table 1). The authorization of incidental take pursuant to the
AFSC's specified activity would not affect any designated critical
habitat. OPR requested initiation of consultation with NMFS's Alaska
Regional Office (AKRO) under section 7 of the ESA on the promulgation
of five-year regulations and the subsequent issuance of LOAs to AFSC
under section 101(a)(5)(A) of the MMPA.
On April 5, 2019, the AKRO issued a biological opinion to OPR and
to the AFSC (concerning the conduct of the specified activities) which
concluded that the issuance of the authorizations is not likely to
jeopardize the continued existence of any listed species, including
marine mammals.

Classification

Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. AFSC is the sole entity that would be subject to the
requirements of these regulations, and the AFSC is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification or on the economic impacts of the rule more generally. As
a result, a regulatory flexibility analysis is not required and none
has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. However, this rule does
not contain a collection-of-information requirement subject to the
provisions of the PRA because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 219

Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.

Dated: August 28, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For reasons set forth in the preamble, 50 CFR part 219 is amended
as follows:

PART 219--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

0
1. The authority citation for part 219 continues to read as follows:

Authority: 16 U.S.C. 1361 et seq.

0
2. Add subpart F to read as follows:
Subpart F--Taking Marine Mammals Incidental to Alaska Fisheries Science
Center Fisheries Research
Sec.
219.51 Specified activity and specified geographical region.
219.52 Effective dates.
219.53 Permissible methods of taking.
219.54 Prohibitions.
219.55 Mitigation requirements.
219.56 Requirements for monitoring and reporting.
219.57 Letters of Authorization.
219.58 Renewals and modifications of Letters of Authorization.
219.59-219.60 [Reserved]

Subpart F--Taking Marine Mammals Incidental to Alaska Fisheries
Science Center Fisheries Research

Sec. 219.51 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the National Marine
Fisheries Service's (NMFS) Alaska Fisheries Science Center (AFSC) and
those persons it authorizes or funds to conduct activities on its
behalf, including the International Pacific Halibut Commission (IPHC),
for the taking of marine mammals that occurs in the areas outlined in
paragraph (b) of this section and that occurs incidental to research
survey program operations.
(b) The taking of marine mammals by AFSC may be authorized in a
Letter of Authorization (LOA) only if it occurs within the Gulf of
Alaska, Bering Sea and Aleutian Islands, Chukchi Sea and Beaufort Sea,
or is conducted by the IPHC in the Bering Sea and Aleutian Islands,
Gulf of Alaska, or off the U.S. West Coast.

Sec. 219.52 Effective dates.

Regulations in this subpart are effective from October 7, 2019,
through October 7, 2024.

Sec. 219.53 Permissible methods of taking.

Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 219.57, the Holder of the LOA (hereinafter ``AFSC'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 219.51(b) by Level B harassment associated with
use of active acoustic systems and physical or visual disturbance of
hauled-out pinnipeds and by Level A harassment, serious injury, or
mortality associated with use of hook and line gear, trawl gear, and
gillnet gear, provided the activity is in compliance with all terms,
conditions, and requirements of the regulations in this subpart and the
appropriate LOA.

Sec. 219.54 Prohibitions.

Notwithstanding takings contemplated in Sec. 219.51 and authorized
by a LOA issued under Sec. Sec. 216.106 of this chapter and 219.57, no
person in connection with the activities described in Sec. 219.51 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 219.57;

[[Page 46824]]

(b) Take any marine mammal not specified in such LOA;
(c) Take any marine mammal specified in such LOA in any manner
other than as specified;
(d) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.

Sec. 219.55 Mitigation requirements.

When conducting the activities identified in Sec. 219.51(a), the
mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 219.57 must be implemented. These
mitigation measures shall include but are not limited to:
(a) General conditions. (1) AFSC shall convey relevant mitigation,
monitoring, and reporting requirements to the IPHC, as indicated in the
following subparts;
(2) AFSC shall take all necessary measures to coordinate and
communicate in advance of each specific survey with the National
Oceanic and Atmospheric Administration's (NOAA) Office of Marine and
Aviation Operations (OMAO) or other relevant parties on non-NOAA
platforms to ensure that all mitigation measures and monitoring
requirements described herein, as well as the specific manner of
implementation and relevant event-contingent decision-making processes,
are clearly understood and agreed upon. AFSC shall convey this
requirement to IPHC;
(3) AFSC shall coordinate and conduct briefings at the outset of
each survey and as necessary between ship's crew (Commanding Officer/
master or designee(s), as appropriate) and scientific party in order to
explain responsibilities, communication procedures, marine mammal
monitoring protocol, and operational procedures. AFSC shall convey this
requirement to IPHC;
(4) AFSC shall coordinate as necessary on a daily basis during
survey cruises with OMAO personnel or other relevant personnel on non-
NOAA platforms to ensure that requirements, procedures, and decision-
making processes are understood and properly implemented. AFSC shall
convey this requirement to IPHC;
(5) When deploying any type of sampling gear at sea, AFSC shall at
all times monitor for any unusual circumstances that may arise at a
sampling site and use best professional judgment to avoid any potential
risks to marine mammals during use of all research equipment. AFSC
shall convey this requirement to IPHC;
(6) AFSC shall implement handling and/or disentanglement protocols
as specified in the guidance that shall be provided to AFSC survey
personnel. AFSC shall convey this requirement to IPHC;
(7) AFSC shall not approach within 1 km of locations where marine
mammals are aggregated, including pinniped rookeries and haul-outs; and
(8) AFSC shall adhere to a final Communication Plan. In summary and
in accordance with the Plan, AFSC shall:
(i) Notify and provide potentially affected Alaska Native
subsistence communities with the Communication Plan through a series of
mailings, direct contacts, and planned meetings throughout the regions
where AFSC fisheries research is expected to occur;
(ii) Meet with potentially affected subsistence communities to
discuss planned activities and to resolve potential conflicts regarding
any aspects of either the fisheries research operations or the
Communication Plan;
(iii) Develop field operations plans as necessary, which shall
address how researchers will consult and maintain communication with
contacts in the potentially affected subsistence communities when in
the field, including a list of local contacts and contact mechanisms,
and which shall describe operational procedures and actions planned to
avoid or minimize the risk of interactions between AFSC fisheries
research and local subsistence activities;
(iv) Schedule post-season informational sessions with subsistence
contacts from the study areas to brief them on the outcome of the AFSC
fisheries research and to assess performance of the Communication Plan
and individual field operations or cruise plans in working to minimize
effects to subsistence activities; and
(v) Evaluate overall effectiveness of the Communications Plan in
year four of any LOA issued pursuant to Sec. Sec. 216.106 of this
chapter and 219.57.
(b) Trawl survey protocols. (1) AFSC shall conduct trawl operations
as soon as is practicable upon arrival at the sampling station;
(2) AFSC shall initiate marine mammal watches (visual observation)
at least 15 minutes prior to beginning of net deployment, but shall
also conduct monitoring during any pre-set activities including
trackline reconnaissance, CTD casts, and plankton or bongo net hauls.
Marine mammal watches shall be conducted by scanning the surrounding
waters with the naked eye and rangefinding binoculars (or monocular).
During nighttime operations, visual observation shall be conducted
using the naked eye and available vessel lighting;
(3) AFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph. If one or more marine mammals are observed
and are considered at risk of interacting with the vessel or research
gear, or appear to be approaching the vessel and are considered at risk
of interaction, AFSC shall either remain onsite or move on to another
sampling location. If remaining onsite, the set shall be delayed. If
the animals depart or appear to no longer be at risk of interacting
with the vessel or gear, a further observation period shall be
conducted. If no further observations are made or the animals still do
not appear to be at risk of interaction, then the set may be made. If
the vessel is moved to a different section of the sampling area, the
move-on rule mitigation protocol would begin anew. If, after moving on,
marine mammals remain at risk of interaction, the AFSC shall move again
or skip the station. Marine mammals that are sighted shall be monitored
to determine their position and movement in relation to the vessel to
determine whether the move-on rule mitigation protocol should be
implemented. AFSC may use best professional judgment in making these
decisions;
(4) AFSC shall maintain visual monitoring effort during the entire
period of time that trawl gear is in the water (i.e., throughout gear
deployment, fishing, and retrieval). If marine mammals are sighted
before the gear is fully removed from the water, AFSC shall take the
most appropriate action to avoid marine mammal interaction. AFSC may
use best professional judgment in making this decision;
(5) If trawling operations have been suspended because of the
presence of marine mammals, AFSC may resume trawl operations when
practicable only when the animals are believed to have departed the
area. AFSC may use best professional judgment in making this
determination;
(6) AFSC shall implement standard survey protocols to minimize
potential for marine mammal interactions, including maximum tow
durations at target depth and maximum tow distance, and shall carefully
empty the trawl as quickly as possible upon retrieval; and

[[Page 46825]]

(7) Whenever surface trawl nets are used in southeast Alaska, AFSC
must install and use acoustic deterrent devices, with two pairs of the
devices installed near the net opening. AFSC must ensure that the
devices are operating properly before deploying the net.
(c) Longline survey protocols. (1) AFSC shall deploy longline gear
as soon as is practicable upon arrival at the sampling station. AFSC
shall convey this requirement to IPHC;
(2) AFSC shall initiate marine mammal watches (visual observation)
no less than 30 minutes (or for the duration of transit between set
locations, if shorter than 30 minutes) prior to both deployment and
retrieval of longline gear. Marine mammal watches shall be conducted by
scanning the surrounding waters with the naked eye and rangefinding
binoculars (or monocular). During nighttime operations, visual
observation shall be conducted using the naked eye and available vessel
lighting. AFSC shall convey this requirement to IPHC;
(3) AFSC shall implement the move-on rule mitigation protocol, as
described in this paragraph. If one or more marine mammals are observed
in the vicinity of the planned location before gear deployment, and are
considered at risk of interacting with the vessel or research gear, or
appear to be approaching the vessel and are considered at risk of
interaction, AFSC shall either remain onsite or move on to another
sampling location. If remaining onsite, the set shall be delayed. If
the animals depart or appear to no longer be at risk of interacting
with the vessel or gear, a further observation period shall be
conducted. If no further observations are made or the animals still do
not appear to be at risk of interaction, then the set may be made. If
the vessel is moved to a different section of the sampling area, the
move-on rule mitigation protocol would begin anew. If, after moving on,
marine mammals remain at risk of interaction, the AFSC shall move again
or skip the station. Marine mammals that are sighted shall be monitored
to determine their position and movement in relation to the vessel to
determine whether the move-on rule mitigation protocol should be
implemented. AFSC may use best professional judgment in making these
decisions. AFSC shall convey this requirement to IPHC;
(4) AFSC shall maintain visual monitoring effort during the entire
period of gear deployment and retrieval. If marine mammals are sighted
before the gear is fully deployed or retrieved, AFSC shall take the
most appropriate action to avoid marine mammal interaction. AFSC may
use best professional judgment in making this decision. AFSC shall
convey this requirement to IPHC; and
(5) If deployment or retrieval operations have been suspended
because of the presence of marine mammals, AFSC may resume such
operations when practicable only when the animals are believed to have
departed the area. AFSC may use best professional judgment in making
this decision. AFSC shall convey this requirement to IPHC.
(d) Gillnet survey protocols. (1) AFSC shall conduct gillnet
operations as soon as is practicable upon arrival at the sampling
station;
(2) AFSC shall conduct marine mammal watches (visual observation)
prior to beginning of net deployment. Marine mammal watches shall be
conducted by scanning the surrounding waters with the naked eye and
rangefinding binoculars (or monocular);
(3) AFSC shall implement the move-on rule mitigation protocol. If
one or more marine mammals are observed in the vicinity of the planned
location before gear deployment, and are considered at risk of
interacting with research gear, AFSC shall either remain onsite or move
on to another sampling location. If remaining onsite, the set shall be
delayed. If the animals depart or appear to no longer be at risk of
interacting with the gear, a further observation period shall be
conducted. If no further observations are made or the animals still do
not appear to be at risk of interaction, then the set may be made. If
the vessel is moved to a different area, the move-on rule mitigation
protocol would begin anew. If, after moving on, marine mammals remain
at risk of interaction, the AFSC shall move again or skip the station.
Marine mammals that are sighted shall be monitored to determine their
position and movement in relation to the vessel to determine whether
the move-on rule mitigation protocol should be implemented. AFSC may
use best professional judgment in making these decisions;
(4) AFSC shall maintain visual monitoring effort during the entire
period of time that gillnet gear is in the water (i.e., throughout gear
deployment, fishing, and retrieval). If marine mammals are sighted
before the gear is fully removed from the water, and appear to be at
risk of interaction with the gear, AFSC shall pull the gear
immediately. AFSC may use best professional judgment in making this
decision;
(5) If gillnet operations have been suspended because of the
presence of marine mammals, AFSC may resume gillnet operations when
practicable only when the animals are believed to have departed the
area. AFSC may use best professional judgment in making this
determination; and
(6) AFSC must install and use acoustic deterrent devices whenever
gillnets are used. AFSC must ensure that the devices are operating
properly before deploying the net.

Sec. 219.56 Requirements for monitoring and reporting.

(a) Compliance coordinator. AFSC shall designate a compliance
coordinator who shall be responsible for ensuring compliance with all
requirements of any LOA issued pursuant to Sec. Sec. 216.106 of this
chapter and 219.57 and for preparing for any subsequent request(s) for
incidental take authorization. AFSC shall convey this requirement to
IPHC.
(b) Visual monitoring program. (1) Marine mammal visual monitoring
shall occur prior to deployment of trawl, longline, and gillnet gear,
respectively; throughout deployment of gear and active fishing of
research gears (not including longline soak time); prior to retrieval
of longline gear; and throughout retrieval of all research gear. AFSC
shall convey this requirement to IPHC; and
(2) Marine mammal watches shall be conducted by watch-standers
(those navigating the vessel and/or other crew) at all times when the
vessel is being operated. AFSC shall convey this requirement to IPHC.
(c) Training. (1) AFSC must conduct annual training for all chief
scientists and other personnel who may be responsible for conducting
dedicated marine mammal visual observations to explain mitigation
measures and monitoring and reporting requirements, mitigation and
monitoring protocols, marine mammal identification, completion of
datasheets, and use of equipment. AFSC may determine the agenda for
these trainings;
(2) AFSC shall also dedicate a portion of training to discussion of
best professional judgment, including use in any incidents of marine
mammal interaction and instructive examples where use of best
professional judgment was determined to be successful or unsuccessful;
and
(3) AFSC shall convey these training requirements to IPHC.
(d) Handling procedures and data collection. (1) AFSC must develop
and implement standardized marine mammal handling, disentanglement, and
data collection procedures. These standard procedures will be subject
to

[[Page 46826]]

approval by NMFS's Office of Protected Resources (OPR). AFSC shall
convey these procedures to IPHC;
(2) When practicable, for any marine mammal interaction involving
the release of a live animal, AFSC shall collect necessary data to
facilitate a serious injury determination. AFSC shall convey this
requirement to IPHC;
(3) AFSC shall provide its relevant personnel with standard
guidance and training regarding handling of marine mammals, including
how to identify different species, bring an individual aboard a vessel,
assess the level of consciousness, remove fishing gear, return an
individual to water, and log activities pertaining to the interaction.
AFSC shall convey this requirement to IPHC; and
(4) AFSC shall record such data on standardized forms, which will
be subject to approval by OPR. AFSC shall also answer a standard series
of supplemental questions regarding the details of any marine mammal
interaction. AFSC shall convey this requirement to IPHC.
(e) Reporting. (1) AFSC shall report all incidents of marine mammal
interaction to NMFS's Protected Species Incidental Take database,
including those resulting from IPHC activities, within 48 hours of
occurrence and shall provide supplemental information to OPR upon
request. Information related to marine mammal interaction (animal
captured or entangled in research gear) must include details of survey
effort, full descriptions of any observations of the animals, the
context (vessel and conditions), decisions made, and rationale for
decisions made in vessel and gear handling;
(2) AFSC must submit annual reports.
(i) AFSC shall submit an annual summary report to OPR not later
than ninety days following the end of a given year. AFSC shall provide
a final report within thirty days following resolution of comments on
the draft report; and
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70,
ES60, 7111 (or equivalent sources) were predominant and associated pro-
rated estimates of actual take;
(B) Summary information regarding use of all longline, gillnet, and
trawl gear, including number of sets, tows, etc., specific to each
gear;
(C) Accounts of all incidents of significant marine mammal
interactions, including circumstances of the event and descriptions of
any mitigation procedures implemented or not implemented and why;
(D) A written evaluation of the effectiveness of AFSC mitigation
strategies in reducing the number of marine mammal interactions with
survey gear, including best professional judgment and suggestions for
changes to the mitigation strategies, if any;
(E) Final outcome of serious injury determinations for all
incidents of marine mammal interactions where the animal(s) were
released alive; and
(F) A summary of all relevant training provided by AFSC and any
coordination with NMFS' Alaska Regional Office.
(3) AFSC shall convey these reporting requirements to IPHC and
shall provide IPHC reports to OPR subject to the same schedule.
(f) Reporting of injured or dead marine mammals. (1) In the
unanticipated event that the activity defined in Sec. 219.51(a)
clearly causes the take of a marine mammal in a prohibited manner, AFSC
personnel engaged in the research activity shall immediately cease such
activity until such time as an appropriate decision regarding activity
continuation can be made by the AFSC Director (or designee). The
incident must be reported immediately to OPR and the Alaska Regional
Stranding Coordinator, NMFS. OPR will review the circumstances of the
prohibited take and work with AFSC to determine what measures are
necessary to minimize the likelihood of further prohibited take and
ensure MMPA compliance. The immediate decision made by AFSC regarding
continuation of the specified activity is subject to OPR concurrence.
The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Status of all sound source use in the 24 hours preceding the
incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(2) In the event that AFSC discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), AFSC shall immediately report the incident to OPR
and the Alaska Regional Stranding Coordinator, NMFS. The report must
include the information identified in paragraph (f)(1) of this section.
Activities may continue while OPR reviews the circumstances of the
incident. OPR will work with AFSC to determine whether additional
mitigation measures or modifications to the activities are appropriate.
(3) In the event that AFSC discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 219.51(a) (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, scavenger damage), AFSC shall report the incident to OPR
and the Alaska Regional Stranding Coordinator, NMFS, within 24 hours of
the discovery. AFSC shall provide photographs or video footage or other
documentation of the stranded animal sighting to OPR.
(4) AFSC shall convey these requirements to IPHC.

Sec. 219.57 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, AFSC must apply for and obtain a Letter of Authorization
(LOA).
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, AFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, AFSC must apply
for and obtain a modification of the LOA as described in Sec. 219.58.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.

Sec. 219.58 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
219.57 for the

[[Page 46827]]

activity identified in Sec. 219.51(a) shall be renewed or modified
upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section), and
(2) OPR determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For an LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), OPR may publish a notice of proposed LOA in the
Federal Register, including the associated analysis of the change, and
solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
219.57 for the activity identified in Sec. 219.51(a) may be modified
by OPR under the following circumstances:
(1) Adaptive management. OPR may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with AFSC regarding the practicability of the modifications)
if doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring set forth in
the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from AFSC's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, OPR will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) Emergencies. If OPR determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 219.57, an LOA may be modified without prior notice
or opportunity for public comment. Notice would be published in the
Federal Register within thirty days of the action.

Sec. Sec. 219.59-219.60 [Reserved]

[FR Doc. 2019-18930 Filed 9-4-19; 8:45 am]
BILLING CODE 3510-22-P